Raising the Bar: The 13th Amendment
United States history has held up the tension between the government and African Americans. From slavery, Jim Crow laws to modern day slavery, we have seen civilians challenge these suppressing laws to the U.S. Supreme Court. For three centuries, Africans were brought to the states to be used as slaves, and on January 31st, 1865, the 13th Amendment was officially passed, forcing all slave owners to free the people they had held as property.
Over 150 years later, Abraham Lincoln’s decision of abolishing slavery remains a controversial one. The Amendment states, “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.” This loophole has allowed prisons to profit off of inmates. Law enforcement and the criminal justice system disproportionately affects people of color, this Amendment allows for the enslavement of the inmates in “modern day slavery.”
Raising the Bar host Jason Clark, President of the Metropolitan Black Bar Association is joined by Jaaye Person-Lynn, Principal at Law Office of Jaaye Person-Lynn, Esq. and Todd Belcore, Co-Founder and Executive Director of Social Change to discuss the 13th Amendment.
Aired August 25th, 2019.
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Jason Clark: Hello, and welcome to Raising the Bar with the MBBA. I am Jason Clark, president of the Metropolitan Black Bar Association. Sadly, my cohost Adeola Adejobi won't be joining us today, but she will be back with us soon. The Metropolitan Black Bar Association is the largest association of predominantly African American attorneys in New York. Our goal is to advance equality in the pursuit of justice, assist in the professional development of our members, and address legal issues affecting New Yorkers. The purpose of Raising the Bar with the MBBA is to foster a substantive conversation about justice issues in our community, while trying to identify a couple of solutions in the process.
Today, we're going to be discussing the 13th Amendment. Did it legally abolish slavery? Joining me for today's discussion are attorneys, Jaaye Person-Lynn and Todd Belcore. Welcome, and let's get to it.
So, you know, this is a pretty strong title and a pretty strong topic we're going to be talking about, so let's just take a moment to read the definition of what slavery is. It says, "Slavery law in legal definition." This is from the U.S. Legal definitions. "A slave is a person owned by someone, and slavery is a state of being under the control of someone where a person is forced to work for another. A slave is considered as property of another, as one controlling them, purchases them or owns them from their birth."
So, one thing we should also... I want to make sure that everybody understands that definition first, and then actually let's go into the 13th Amendment. So what specifically does the 13th Amendment say?
J. Person-Lynn: The 13th Amendment, and I may have a couple words off, but in essence, "Slavery nor involuntary servitude, except as punishment for a crime in which the party shall have been duly convicted, shall exist in the United States or its territories."
Jason Clark: Did the 13th Amendment abolish slavery?
J. Person-Lynn: No. If we're looking at the text itself, you cannot say something is abolished, which means completely gone, it's done, it's over with, and there's no way to have it, that cannot exist where you have the language in the 13th Amendment that reads, "Slavery nor involuntary servitude, except..." And when "except" is the first word after a comma, that means whatever language comes after that means the language proceeding that can happen. So except for a party that's been convicted, duly convicted, of a crime... for punishment in which the party has been duly convicted of a crime," comma. So that's where slavery lives in 2019 in the United States of America is in between those two commas, the first two commas in the 13th Amendment.
Jason Clark: Todd?
Todd Belcore: Well, the textual representation he's putting forth is fair. That's exactly how it reads, and there's no disputing that. Slavery is not existing in the form that it did initially, and that in and of itself bears witness, and it should be mentioned. But I think as it relates to people who are actually incarcerated, there's a case to be made that there's some slavery taking place. There's not just involuntary servitude, but people are treated in a way that we certainly consider cruel and unusual, which is supposed to be something that's also explicitly protected by the Constitution and the 8th Amendment. But slavery does not exist currently, even within the context of the general society, but in particular when you deal with incarceration, I think there's an argument that can be made, but I don't think so, slavery still exists.
Jason Clark: Yeah. No, that's interesting that you say that. I guess really where we're talking about is... when we talk about folks, as you were mentioning, Todd, who are incarcerated, and again, those... that portion that's within the commas. You know, certainly makes me think back to the documentary The 13th that came out, which I think really fleshed out and really explored this issue. But I guess, you know, Jaaye, tell us a little bit more. It's like, why do you think that slavery hasn't been abolished?
J. Person-Lynn: Well, one, I'm from California. In our jurisdiction, black men in the State of California, black men make up just 3.3% of the state's population. Now remember, slavery was a very profitable engine at the time. It was the economic system of the time, and it was very profitable. Black men in California make up 27% of California State prisoners even though we're only 3.3% of the population. How is that profitable? Well, California's Department of Corrections has 66,500 employees and about 126,000 inmates, in which we're 27% of that. That's about 30,000 extra black men, if we're going 3.3% to that 27,000. The average inmate, you know, they say it's around 36,000, but then if somebody has a heart attack that year and gets $200,000 worth of medical care, it goes up, so I think a fairly conservative average is about $50,000 a year. So if we're saying that we have an extra 30,000 people locked up that the tax payers paying an extra $50,000 a year for, that's $1.5 billion annually that the government gets.
And that's the difference I want to point out. You and I, in 1790, could purchase slaves, even as black people. There were black slave owners. 2% of all slave owners were black. Today, no one can, as a private citizen, can purchase a slave. The only slave masters now are the governments, the states and the federal government. That's who the slave masters are, and so that's why I think people have a hard time acknowledging that slavery exists currently, because it's not one individual human being in their individual capacity owning another, it's the state owning it, and that's where I think people get mixed up. But the state is who receives that extra $1.5 billion in California. It's not going to... back to the people, it's going to the government. And those employees, by my account 17,000, would be unnecessary if we were incarcerated at equitable rates.
Jason Clark: So it sounds like what I'm hearing is that, you know, maybe not like, you know, I guess back in the day where you can just say, "Hey, I'm gonna pay X amount of money for this person who's been, I guess, deemed a slave." Today, what you're saying is that there are individuals who are being compelled to do certain tasks, you know, namely folks who are incarcerated, or cannot do certain things, and anything... For example, if they're working while they're incarcerated, you know, the large majority of that money actually goes to the government. So in that sense...
J. Person-Lynn: Well, I don't know how much... My cousin is in prison, and he just got about a 30... between 30% and 40% raise for his job. He works in the kitchen. So he went from 8 cents to 11 cents an hour. And if he wasn't working in the kitchen, then the government would have to hire somebody to do that job. It'd probably be at minimum wage, but in California, you know, it's like $12 an hour. So when I look at it from that perspective, it's the slavery that we think of, you know...
And even when it comes to the brutality of it, most people never go behind those walls. I do sometimes in my capacity as a criminal defense attorney and sometimes in my capacity as one that has a family member behind those walls, but I get to see. And I've been, not behind prison walls as an inmate, but I've had some unlawful arrests in my career and got time to spend behind those walls as an inmate, and that's what really made this clear to me. This is the way they treated us, the way they spoke to us, the way they looked at us, the way they degraded us. That's slavery. That's the inhumane treatment that still exist, but because the majority of society never sees what goes on behind those walls, and they love the guys in the uniform with the badges and want to lift them up and honor them, that's why we end up confused as a society.
Jason Clark: Todd, do you want to jump in?
Todd Belcore: Yeah. I mean, I think where the concern is that we may be conflating the notion of prison incarceration, law enforcement accountability, with automatically jumping to the level of slavery. And I think I do understand and I agree that the brutality is present, and I do think there is no question that the mistreatment that's government-sponsored in many ways of police officers in the community but also correctional officers and community members is important, and I do think it rises many times to cruel and unusual. I spent several days in Pelican Bay the weekend before last speaking with the men beyond bars over there and getting to better understand their experience, and there's no question the mistreatment and the the foul treatment of people who are... only because they're behind bars [inaudible 00:13:06]... It's a different sort of process. Their rights are completely obfuscated, and I think that's something that we both agree on.
But I do think there is definitely a nuanced divergence between being locked up or being a slave, because there is a period where you get out there, there are ways to be relieved of that burden. There's bail, there's clemency hearings. It's different than being perpetually owned by someone and not having any sort of freedom, emotional freedom, to do anything. And I think that's where I say, "Okay, yes, we do have a system that hyper-criminalizes people of color and that over polices our communities and has a justice system that's unfair fundamentally in and out, but rising to a level of slavery is where I think we have to draw the line."
Jason Clark: Yeah, I mean, I think what we're talking about is... I mean, there are these two issues. There's, you know, certainly the 13th Amendment, we know, which we've been discussing and what the... frankly, just what it says if you actually read the actual letter of the law, but there's also this other idea as to, you know, how we treat individuals who are incarcerated and whether or not we treat them appropriately or whether or not we're treating them in a way that doesn't... that isn't in line with what most people think that 13th Amendment is supposed to say. Maybe not specifically what it says, but what people think about it. But even as we're going through some of these things, I mean, I can imagine, you know, someone's probably watching, they're saying, "Okay, well I understand maybe what you guys are saying, but let's say I go out there and I, you know, I steal a car, and I end up going to jail." You know, part of the reason, some would say that you're being incarcerated is so that you don't have an opportunity to be able to, you know, make more money for yourself. You don't have an opportunity to be able to have all the same rights as someone else. I mean, what would either of you guys say to that?
Todd Belcore: Well, and there certainly needs to be accountability. There's no question. As someone who has grown up on the South Side of Chicago, I've been victim of crimes, but also my family has as well. But my goal and my prayer is... and the reason why I do the work I do at Social Change to make sure people actually have an opportunity to be rehabilitated is not necessarily just to throw people behind bars but to try to help people get the opportunities, the services, the truth and reconciliation approach to really understand the impact of what they're doing. And also better understand their story. Why are they doing it in the first place? Because until we get to the "why" people are committing crimes, we're never going to solve the actual issue of public safety. And I think the entire premise behind the justice system isn't getting to the "why," it's just trying to actually put people behind bars. And I can see why that adds fuel to the fire, to counsel's argument of, "If they're really not trying to solve the problem, then what are they trying to do?" And at that point, I can see why it lends itself to the argument that he's been making.
J. Person-Lynn: And so what I point out to that question is we know the framers of the Declaration of Independence... beautiful document... The Constitution of the United States... amazing document, but those documents also let us know that we're slaves or that slavery existed, right? While they wrote, "All men are created equal," they held slaves. The Constitution has the three-fifths clause in the Constitution still to this day, and it has the 13th Amendment that allows for slavery. So it's a difference because the 13th Amendment delineates between involuntary servitude and slavery.
And I'm pointing out that slavery is a subhuman status in the United States of America, and because of the text of the 13th Amendment, we allow for that subhuman status. It's acceptable in society, and I think a big reason why it's acceptable is because we've allowed it to go on right in front of our face. And believe me, I didn't have this same view a year ago, but sitting in the Clark County Detention Center in Nevada, I saw slavery. Then I got out and looked at the 13th Amendment again and was like, "Oh, it's right there. This is why it's okay." And if it means nothing to you or if it's not that, then make the Constitution what the California Constitution says, which is, "Slavery shall not exist," period. Then another sentence, "Involuntary servitude shall not exist, except for punishment of a crime." But because the federal Constitution does not delineate it that way, and there's a comma and an exception, slavery, the subhuman status, is still available.
And so that makes black people, which I call 14th Amendment Americans, we are of the... we are the only class of people in this United States of America... Not all black people, specifically descendants of American slaves. So Barack Obama could not be a slave. He would be an involuntary servant if he's convicted. But we are the only class of people that can be made a slave, per the U.S. Constitution. And I'm a Californian, so maybe not in California State, but if I'm federally charged in California, then I could be a slave.
Todd Belcore: Well, you know, I think the counsel's making a lot of really good points, especially as it relates to people being treated inhumanely. And I think a lot of the places where I find the biggest unrest and the reason why we kind of rabble-rouse where we can nationwide on this issue is the cruel and unusual punishment aspect of it. I mean, people are put in solitary confinement where they're in a cell half the size of a closet, and they're literally subjected to torture, because you have no stimulus, you have no way to actually communicate with people, and you're in a room that's without any sort of opportunity to really be in a position even to stretch out. And imagine the discomfort of that. That can only be seen as dehumanizing behavior. There is no other way for it to be approached, and that's one of the things I had a chance personally witness in Pelican Bay.
And I think when you get to those issues, the problem is, in America, cruel and unusual is no longer unusual. It happens frequently enough where people actually are desensitized to it and it's actually becomes common. So that gets to the heart of what counsel is saying in many ways, because people aren't even outraged by a lot of things that are going on because we're so used to seeing it, and when you're used to seeing things that are cruel... Even now with the flooding of images of people having their children taken from them at the border, we're slowly becoming desensitized to the notion of it. And then eventually, what was once considered cruel and unusual is it's bad and happens kind of often, and that's why you really have to be vigilant in defending people's Constitutional rights and recognizing the importance of standing up to the letters of the document versus practicing something very different than the beauty of the document as it's written.
Jason Clark: Right.
J. Person-Lynn: And one thing I want to say on that point, the 8th Amendment was ratified while slavery still existed.
Jason Clark: And can you tell folks just [crosstalk 00:20:13]-
J. Person-Lynn: The 8th Amendment is the amendment that gives us the protection against cruel and unusual punishment and the right to bail. But being that that was in place at the time that slavery was still completely legal, it's not cruel and unusual to the slaves, is my argument that... and I... The argument against that is that the 14th Amendment now makes the Bill of Rights apply to us, but clearly the Plessy v. Ferguson decision... Not Plessy v. Ferguson, the Dred Scott decision and that... and then that decision, the Supreme Court, the highest court of the land, in a very calculated and analytical way broke down exactly why those protections don't apply to descendants of American slaves. And so when you look at that documented history and the fact that we can go all through the archives of Congress, there's never been a document that's ratified by Congress that actually ended slavery.
We don't have it. We cannot point to it. People say, look at the 13th Amendment. But when we look at the texts, the one thing we can all agree on, just textually, that doesn't abolish it. So we just don't have it. And that's what I want. That's my main focus is to point that out, and I think if we realize that, then we'll have the domino effect.
Jason Clark: This may be a nice time to even just talk a little bit, because I know that, you know, you've been the co-founder of an organization called Social Change that has done a lot when it comes to, you know, trying to reduce some of the inequities that are out there in regards to legislation. So can you just very briefly tell us a little bit about what Social Change does, and then, I guess, get in to that question as to what we could do to maybe do a better job of protecting folks from being used in a way that, at least today we say people shouldn't be used.
Todd Belcore: Yeah, absolutely. Social Change is committed to liberation through uplifting communities, advocacy, litigation, direct services, storytelling. The goal being... it's addressing many of the issues you just articulated. I agree that the criminal justice is the most significant issue of our time, the civil rights issue of our time, the human rights issue of our time, only because it allows for people to be treated as a second class simply by virtue of having an arrest record. That means you can get access to housing. That means you can't get access to jobs. You're literally then become an individual in society who has to live a life sentence of a civil death, so to speak. So that's one of the reasons we try to fight that. We try to fight that by changing the laws and make those practices legal, but we also fight that by representing people who are mistreated and being denied access to basic necessities because of their criminal histories.
And the final thing we do is relation to that is actually teach people in the community how to not just know their rights but exercise them and represent themselves and others in these sorts of cases so they can better articulate their concerns, not just to elected officials but also make sure the lawyers that they're working with or are going to represent themselves or walking their family through issues, and that they can make sure that they're putting their best foot forward. But there is no questions that the deck is stacked against us from the beginning. As soon as you come out the womb with the melanin, you're much more likely to be arrested, you're much more likely to be mistreated. And the sort of trauma you're likely to endure is orders of magnitude beyond people who are lighter skinned, even myself versus my brothers who are darker.
But what can we do then to address that? Let's not just talk about the problem. What are our solutions looking like? So we unpack the legislation and dismantle some of the systems by calling for systemic reform and bail, sentencing, parole, but also making sure people have access to jobs and education from the front end so they're not left in a position where there's no options on the backend.
Jason Clark: Great. But even as, I guess, we're hearing what Jaaye is saying... So obviously we're in this situation, you know, the 13th Amendment is what it is, and, I mean, you could certainly amend it, but, you know, that's probably not something that's gonna happen recently. Like what are some of the things we could do, maybe policy-wise or legislative-wise, to try to truncate some of the shortfalls that we have in the amendment?
J. Person-Lynn: Well, it's obviously much easier to amend a state constitution than it is the federal Constitution, but one thing we could do state by state on this issue is just say, "Hey, let's have..." I haven't done the research to find out what each state says about it. I'd imagine there's other states with that provision the same way California's Section 1, Article 6 reads, but maybe if we can at least get all the states to at least amend their constitution to state that, then we can get the ball rolling that way. And if it becomes a big enough issue popularity-wise, then the questions will be asked by the CNN and MSNBC and Fox News anchors when politicians come on. "Are you for repealing the 13th Amendment and changing the language?" And now, especially in election years, that's one of the way through politics, you know, we can get... I do think we need to do the legislative things, but I also think we need to make this a issue in the same way when we saw the Me Too movement. That was outside of the legislative halls, but now it's all in the legislative halls, because they know they needed a response.
Jason Clark: So let's take a minute to talk about legislative solutions. You know, what are certain things that we can do? I know you had mentioned a couple when it comes to maybe some changes when it comes to state constitutions, but what are some other things we can do legislative to at least be able to, you know, reduce the, you know, some of the... I don't want even say unintentional, but some of the unsavory consequences of the 13th Amendment as it's been written?
Todd Belcore: Well, one of the things we're working on actively at Social Change is really just eradicating the codified legalized discrimination that's allowed for people with criminal histories. So making sure that people... if I have a record, that doesn't mean I should be precluded from being able to get access to housing. It doesn't mean it should be allowed for an employer to say no to when I seek a job opportunity, doesn't mean I shouldn't be allowed to be able to open a business. All these things are actual things that are written in law that make it impossible or very difficult for people with records to get access to the basic necessity they need to take care of themselves and their families. So what we do is unpack that. We make sure the language is representative of considering people on their merits versus automatically disqualifying people because of their criminal histories, whether it be as it relates to seeking housing or as it relates to seeking occupational licenses, as it relates to seeking job opportunities. But also we work to make sure employers that are not following the law are held accountable, because what happens, even if the law says you're not allowed to discriminate, doesn't mean discrimination doesn't take place, clearly, so we need to make sure that people are held accountable as well.
But in the backend of that, in addition to make sure the over 75 million people with records throughout the country are being treated fairly, we're trying to help people avoid getting records in the first place. So we're decriminalizing conduct and making sure that you can no longer be thrown in prison for unpaid parking tickets or fees and fines or smoking a joint. We're also working to make sure that people can get access to education, providing some funding so people can have grants and the capacity to get grants throughout their entire educational tenure if they're going to college. And it's important to make sure we're creating these pipelines for opportunity but also recognizing that justice system's always going to be unfair, but we can do whatever we can to make sure at least the sort of legal lynchings that are taking place are at least illegal.
Jason Clark: Well, this has been a very, very insightful conversation. I want to thank our guests, Jaaye and Todd, for being here and discussing this, you know, really important and under-discussed topic. I want to thank all of you for watching Raising the Bar with the MBBA. [inaudible 00:28:26] Manhattan Neighborhood Network, goodbye.
Co-hosts Jason Clark, President of the Metropolitan Black Bar Association (MBBA), Attorney Adeola Adejobi, and their guests discuss legal issues facing the African American community.
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