MADISON, Wis. (WFRV) – On January 31, 1865, the Thirteenth Amendment passed in Congress, effectively abolishing slavery in the United 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.”
You’ll notice one part of the above amendment sticks out – “except for crime whereof the party shall have been duly convicted.”
That’s the part that remains in Wisconsin’s Constitution under Article I, Section 2.
“There shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.”
According to the Wisconsin Legislative Reference Bureau, this language reflects the Northwest Ordinance of 1787, which prohibited slavery in newly added territories. Similar language would become part of the U.S. Constitution in 1865 with the passage and ratification of the Thirteenth Amendment.
Voters in Utah recently passed an amendment to remove slavery as a punishment for a crime from the state constitution.
Associate Professor of Law at Marquette Law School Ed Fallone says that while removing slavery from Wisconsin’s constitution may carry importance for some people, it could create more legal challenges in the state than it currently does.
“In some ways, it’s not a big deal. But I can understand, in other ways, the symbolic importance of individuals who want to remove any reference of slavery from the constitution.”
Fallone explains that, in Wisconsin, the amendment is most impactful on those sentenced to prison.
WATCH: INTERVIEW WITH FALLONE
“What the constitution says is that the institution of slavery shall not exist except in cases of persons who have been convicted of a crime.”
According to Fallone, this doesn’t mean that a judge in Wisconsin could sentence someone to slavery for committing a crime.
“What it does mean is that if you are in prison and you are forced to do labor during the course of your imprisonment, then you can’t claim that you are enslaved and being forced into slave labor in violation of the constitutional ban on slavery.”
In 1848, when the provision was added to the constitution, it was thought that forced labor was a means of rehabilitation for those convicted of crimes, Fallone explains.
“We no longer believe that and, in fact, today, prisoners are often given work opportunities or even sometimes called to engage in labor, but for minimal amounts of money.”
Fallone says there have been some challenges to the provision that attribute mandatory requirements being akin to slavery. One example of this, according to Fallone, is lawyers in some jurisdictions being required to give a certain number of hours to free legal services, or pro bono services.
“When it comes to lawsuits by prisoners, people who are incarcerated, there have been some lawsuits,” he says. “But, typically, courts have upheld the treatment of prisoners.”
There is limited case law regarding this section of the Wisconsin Constitution. What case law does exist addresses the question of whether certain criminal penalties violate the prohibition on slavery or involuntary servitude, according to the Wisconsin Legislative Reference Bureau.
In Milwaukee v. Horvath (1966), the state Supreme Court considered the constitutionality of an ordinance in Milwaukee permitting imprisonment for failing to pay fines. The appellant had been sentenced to imprisonment in the county jail after refusing to pay various fines relating to motor vehicle violations. In this case, the court found that this imprisonment did not violate either the Thirteen Amendment of the U.S. Constitution or Article I, section 2, of the Wisconsin Constitution.
The Court of Appeals of Wisconsin later considered the conviction of a contractor who breached a home improvement contract and thus violated certain provisions of the Wisconsin Administrative Code in State v. Brownson (1990). Its decision noted the “limited exceptions to the rule expressed by the Thirteenth Amendment and Article I, section 2, of the Wisconsin Constitution,” which include “military service or jury duty” or certain “‘exceptional cases’ such as those granting parents certain powers over their children or laws preventing sailors from deserting” (State v. Brownson at 413).
More recently, in State v. Beecraft (2006), the Court of Appeals of Wisconsin found no merit in the plaintiff’s claim that his prosecution for possessing marijuana constituted involuntary servitude under both the U.S. Constitution and the Wisconsin Constitution.
“What actually, I predict, would be if we did eliminate the current language, which created the possibility of forced labor for prisoners, if we eliminated it, then I actually think we’d see more lawsuits by prisoners, challenging what they were forced to do while incarcerated,” Fallone adds. “So eliminating the constitutional provision might lead to more litigation, not less.”
What if Wisconsinites wanted to change the state’s constitution and remove any mention of slavery from it?
Fallone says the process is pretty straightforward, but it’s not easy.
“Language has to be passed and approved by the State Legislature not just once, but in two consecutive sessions,” he explains.
From there, that language has to be approved by a majority of Wisconsin’s population in a vote.
Wisconsin recently amended its constitution in spring with the approval of Marsy’s Law.