The exception clause in the 13th Amendment was not accidental. It was debated. Senator Charles Sumner of Massachusetts argued against it, warning that it would allow re-enslavement through the criminal justice system. He was overruled. The amendment passed with the exception intact.
Step 1 — 1865
13th Amendment abolishes slavery "except as punishment for crime"
Step 2 — 1865–66
Southern states pass Black Codes — criminalize unemployment, vagrancy, "impudence," walking without a pass, assembling after dark
Step 3 — 1866–1900s
Convicted Black men leased to plantations, mines, railroads — same planters, same conditions, higher mortality than slavery (no financial incentive to keep workers alive)
Step 4 — 1900s–1940s
Convict leasing formally abolished but replaced with chain gangs — state-run forced labor building roads, draining swamps, quarrying stone
Step 5 — 1970s–Present
Mass incarceration. 2.3 million incarcerated, disproportionately Black. Prison labor pays $0.13–$0.52/hour. The exception clause remains in the Constitution.
11
States passing Black Codes within 1 year of emancipation
4M
Newly freed people subject to them
Within months of the 13th Amendment's ratification, Southern states passed Black Codes — laws designed to re-criminalize the activities of daily life for Black people specifically. Mississippi's 1865 Black Code is among the most comprehensive:
It criminalized: unemployment (any Black person not under labor contract by January 1 was subject to arrest); vagrancy (defined so broadly as to include any person "wandering"); assembling in groups after dark without a white employer present; owning firearms; renting land in cities; and "impudence" toward white people — a crime with no fixed definition, left to the discretion of white law enforcement.
Arrested individuals were fined. If they couldn't pay — and they almost never could, being days out of bondage — they were "hired out" to the person who paid their fine. Which was usually their former enslaver.
"The negro is now a free man. But he will not be a voter. He will not be a juror. He will not hold office. He will not be treated as the equal of the white man. He will be required to have a home, a lawful occupation, and a written contract with his employer."
— Mississippi Governor Benjamin Humphreys, 1865, presenting the Black Code to the state legislature
30–40%
Annual mortality in some Alabama coal mines
$0
Wages paid to convict laborers
1928
Year Alabama — last state — ended formal leasing
Under convict leasing, state governments leased convicted prisoners to private businesses — coal mines, turpentine farms, railroad companies, and plantations — for a fee. The businesses received free labor. The state received income. The prisoners received nothing.
Historian Douglas Blackmon, in his Pulitzer Prize-winning Slavery by Another Name, documents that convict leasing was in many ways more brutal than antebellum slavery. Under slavery, an enslaver had a financial interest in keeping workers alive — they represented capital investment. Under convict leasing, the lessee had no such incentive. Workers were replaceable the next time a sheriff needed to meet his arrest quota. Mortality rates in Alabama coal mines reached 30–40% annually in some years.
The men leased were overwhelmingly Black, overwhelmingly convicted of the manufactured crimes of the Black Codes, and overwhelmingly innocent of anything recognizable as criminal behavior. Federal investigator Mary Church Terrell documented case after case of men convicted of "vagrancy" — for being unemployed for a week — who spent years in coal mines.
$0.13
Minimum federal prison wage per hour
2.3M
People currently incarcerated in the U.S.
38%
Black share of prison population (13% of general population)
The 13th Amendment's exception clause has never been removed. As of 2024, prison labor in federal facilities pays between $0.13 and $0.52 per hour. In many states, it pays nothing. Prisoners fight wildfires in California for $2–5 per day. They manufacture military equipment, office furniture, and agricultural products sold to the public. Several corporations — including Whole Foods, McDonald's, Walmart, and Victoria's Secret — have at various points sourced products made by prison labor.
Twenty-two states have moved to remove the exception clause from their state constitutions since 2018. The federal amendment has not been amended. A joint resolution to remove the exception clause — H.J.Res. 72 — has been introduced in Congress multiple times. It has never come to a vote.
The chain runs from 1865 to today without interruption: the legal mechanism is the same. The racial disproportion is the same. The forced labor is the same. The exception clause is the hinge on which the entire system of racialized mass incarceration turns.