On May 13, participants at Quest for Democracy were invited to attend a legal symposium about the basis of involuntary servitude in the US and CA Constitutions and how we can get them abolished.
As we celebrate Juneteenth, we honor this day and our ancestors who were forced into chattel slavery while calling attention to the continuation of slavery through mass incarceration.
This transcript has been edited for clarity, grammar, and brevity.
Panelists:
- Erwin Chemerinsky, Prof. & Dean of Berkeley Law School
- Carmen-Nicole Cox, (then) Director of Government Affairs for ACLU California Action and (current) President of The Cox Firm for Law and Policy
- Lawrence Cox, Regional Advocacy and Organizing Manager, LSPC
- Brandon V. Stracener, Attorney and Senior Research Fellow, California Constitution Center
- J Vasquez, Policy & Legal Services Manager, CURYJ
Moderated by Eric C. Sapp, Staff Attorney, LSPC
Eric Sapp: Involuntary servitude as a legal concept in America even pre-dates the constitution itself. Dean Chemerinsky, what do you think the original meaning of involuntary servitude would have been in the Northwest Ordinance of 1787?
Dean Chemerinsky: I think when you focus on the Northwest Ordinance or early American history, you have to put it in the context of the society that existed then. Slavery was deeply entrenched in the Southern states at the time. Slavery was protected by the Constitution when it was written in 1787: Congress couldn’t ban the importation of additional people for 20 years –one of only two provisions that couldn’t be amended in the Constitution, and the provision that enslaved people would count as three-fifths of a person for allocating seats in the House of Representatives. The fugitive slave clause in article four of the Constitution stated that if an enslaved person escaped from a slave state to a free state, the enslaved individual had to return to his or her owner. It was clear at the constitutional convention in 1787 that any effort to try to even chip away at the institution of slavery would have meant that there wouldn’t be a new constitution. North Carolina, South Carolina, and Georgia all said that they would leave the constitutional convention if Congress had the power to ban the importation of additional individuals. So when you talk about the Northwest ordinance, it was very much a focus on slavery in the context in which it existed in the south for those of African descent.
Sapp: And does the state of California’s concepts of involuntary servitude and slavery mirror those of the federal government, or is there room for difference in meaning in the concepts?
Carmen-Nicole Cox: I just want to note for y’all that in 1974, California reorganized its constitution. And one of the things they did that is interesting here is the language that we see now, that’s the consequence of a ballot proposition from 1974. And before that reorganization, it was actually much more conflated with involuntary servitude and slavery. In what was supposed to be more of a technical cleanup, we have the language that we see now, which intentionally tries to make involuntary servitude and slavery seem very different, very distinct. But at the end of the day, what we’re talking about, whether legally, logically, physically, spiritually, is that folks are being compelled to give over their talent, their human labor, their skill, their time, their ability, their effort, whether or not they want to…So they land on the bottom the exact same and while there might be legal rationale behind why courts want to treat them differently, for our purposes, it is very important that people see that there is no distinction in the way that it lands on the body and the way that the exploiters previously the the colonizers, the masters, the slave owners, the way that those folks benefit today is there’s still very much profit.
J Vasquez: We know that forcing somebody to labor and punishing them, right, takes away that person, dehumanizes them, right? And so, we’re talking about here is saying that people have a fundamental right to how their bodies are used, right, even in the carceral state, regardless of what they’ve done. People should not be punished, which they currently are, for missing work because they’re sick and they didn’t get that medical time. People shouldn’t be punished for being injured on the job, right, and then being expected to go back to work. Or maybe someone wants to do a different self-help program, not being able to because of their work hours, and if they choose to go to that self-help program instead of work, they get rid of them, right?
I think it was Brandon that talked about the 13th Amendment. And we all remember though the exception clause in California was 16 years before the 13th amendment, right? So I think what California got to look at is the unique perspective before even San Quentin was built, before even the first prison was built. Right? There’s so much that goes into it with California being accepted as a union. They have all these white men in California legislature like, oh crap, California has to enter as a free state. What are they going to do about slaves? Right? So they got very crafty and came up with the exception clause in 1849. Just five months later they came up with the Indian Indenture Act, the reason for the indenture act is because it was the native peoples that were exploited here in California. Blacks were exploited too, there weren’t that many in California at the time. So, these people were already being enslaved. A lot of these white legislators who owned slaves were like okay the free state, how do we maintain our property, how do we maintain our businesses and part of that was saying, “Okay, well now we can exploit you or punch up crime.” And then a few months later they did that, right? You’re criminalized for being unemployed, you’re criminalized for being homeless, or loitering, or living an immoral life. So any white man could take that native person before a white judge…So I just wanted to tie it back to the history of how they got in because when people look at it today it’s very different.
Sapp: Does anyone want to add any thoughts about the conception of slavery involved in the founding perhaps?
Lawrence Cox: I’m not the constitutional expert. But guess what? This is so simple. If we’re not trying to ban involuntary servitude we can have any type of language, we can water this language down, we can leave open to leave loopholes, we can leave open for misinterpretation and litigation that follows. And guess what? The practice continues while all this is going on. I think the implications are great because if we put so much effort passing the legislative process and then just say we get to, you know, the ballot again and we pass. How much energy is it going to take to reinvent what we already fixed? If we’re going to take the energy to go through these processes over and over and trust me, we’re willing to do it because we’ve been doing it for years. Wouldn’t we prioritize making sure that we close that loophole in every form and action period? Well, guess what? If the language that we have right now, 475 or ACA6, if we can’t amend this language and make sure that we’re specific and we’re calling out involuntary servitude as well, then guess what? We’re not doing justice for the individuals that we’re fighting for. We’re not doing justice, you know, for all the individuals that have been subjected to it like me and J and a lot of us in this room have experienced involuntary servitude who know exactly what that feels like. The implication I believe is great. We look at states that have already amended their constitution. We see, guess what? The practice still continues. If we look at all the legal matters that are still going forth the misinterpretations that are allowed to be matched back and forth on guess what? It didn’t do the job and the implications for California is this will follow in their footsteps. I think maybe Colorado may have had some of the strongest language that we could potentially I don’t want to say draw from because language that we had like I said with ACA 8 when we passed that I think that would have been the strongest language in the nation because not only did we call out everything that needed to be called out but we also made sure that incarcerated population was protected through the constitution and they weren’t punished for choosing to forgo a job a voluntary job should I say and you know decide they want to partake in rehabilitative courses. With the language that we currently have now, if we don’t amend, then guess what? All that goes out the door. […]and I’m pretty sure everybody else would agree that the language should be changed to something that’s […] significant and, you know, just do this symbolic dance all through the capital and then, you know, up and down California State with another campaign. I’m not trying to convince somebody. That’s hard work. So, the implications really in so many different ways and factors is truly great.
Vasquez: Yeah, so part of the problem with the legislators is when they try to clean something up often times they get more confusing. When article 1 section 1849 was written, it was one sentence. It said neither slavery nor involuntary servitude unless for the punishment for crimes are tolerated by the state. So it was like one sentence, it combined them. What Carmen talked about in 1974, is when they tried to clarify things, they separated the two. So in other words it now says slavery is prohibited period and involuntary servitude is prohibited except for punishing a crime. So if we’re talking about current ACA 6 as written or its absence [ie involuntary servitude clause], its absence is not saying involuntary servitude shall be prohibited, it’s saying slavery in all forms is prohibited. Well guess what technically legally slavery is already prohibited in the constitution right so really it’s not doing anything we got to be very specific to saying that involuntary servitude is prohibited as well.Because if we don’t do that, then technically CDCR is going to keep trying to keep the status quo. They’ve done that for decades, we’re not going to change that overnight. So, we got to ensure that they cannot continue the same working conditions, forced labor, which we know they’re going to do if we just say slavery in all forms is prohibited, right? Because we’re not touching involuntary servitude. That’s just being absent all of a sudden. We have to strictly prohibit it because if we don’t, we’re likely to see the same conditions even if that ballot passes the votes. So, it’s very dangerous. It’s pretty much not going to do anything. So, we definitely got to say specifically involuntary servitude shall be prohibited.
Carmen-Nicole Cox: I have so many thoughts. During the campaign, you talk to a lot of folks across age, across socio-economic status, race and gender identity. We talked to so many people and quite honestly there were a great many folks who do not understand the conditions inside. We are a very punitive society and we conflate accountability with strict punishment and I would say that particularly in certain communities that is true. So I think it is in part an attitude, but our attitudes are learned, these are learned understandings about what it takes to make our community safer, about what rehabilitation looks like, about what redemption looks like, about what accountability is. And I do think that in some ways, we fail to connect with enough folks who hold the attitude that this brutal and inhumane treatment of individuals is somehow accountability. People were literally using the word accountability, as if the only way that you can exact accountability, that you can achieve accountability, is to lash a man across his back. And failing to connect with more people to have the conversation to help them to unlearn. Literally, we are steeped in this social climate that says particularly for Black and Brown folks, these are people who need to be whipped into shape, and but for that they will not cannot join us safely in society. It’s why we marshal so many of our folks, Black and Brown folks, into these cages in the first place. And the idea that they would sit in these cages and not be whipped, folks genuinely felt like that would in some ways have people avoid accountability.
Sapp: We’re at the announced end time. So I wanted to ask if you have any concluding observations.
Brandon Stracener: I think many people don’t contemplate the value economic and otherwise of a reduced recidivism rate of having folks you know being able to get out of prison and live normal productive lives and have meaningful lives and be welcomed back into society and and you know yes there’s tax revenues that come from that. On one hand, should the money really be an issue here? And on another I know an obstacle we often face when trying to convince the legislature or voters to do something is folks immediately run to think of their wallets even if that shouldn’t be the primary consideration. So I think it’s helpful to look at that complete picture. I will say that one of the values of being Californian is that we have multiple paths to victory on any policy issue. So if the constitutional amendment can’t get across the line, I understand and I think was an excellent point raised by the panel that a constitutional amendment is more resistant to change. Correct. And that that goes both ways. That’s a benefit. It can be a drawback if the constitutional amendment creates worse effects for the folks who are trying to help. So there’s always the path to pursue statutory amendments through the legislature and to push the legislature to quickly react when there’s a mistake or an unforeseen consequence. So if a constitutional amendment doesn’t seem to be able to break through with the voters, the legislature will move, it will act. And it may not always be a benefit. Yes, there are concerns about blowback, but I would say, you know, I’d urge anyone, you know, in California trying to make change, look at all of your avenues and your paths and you may find an alternative path to accomplish the same result. And, sometimes that’s just kind of the difficulty of getting something done in California. I commend the people here for pursuing this path.
Sapp: Thank you. Carmen?
Carmen-Nicole Cox: What I will say is, at the end of the day where we are right now is we have two pieces of legislation that say they want to help us achieve our ultimate goal of ending the forced labor of all people in the state of California as we have. The legislation falls short. Thankfully, we have all you beautiful people here and all your friends and family, all your followers, all your caring folk, even the people who don’t like you, the people your social media because they don’t like, all you have access to. We need to let folks know we are on the verge of being the first state in the union to amend our constitution in a way that effectively, that meaningfully, that actually ends forced labor of all California and we need to hear different words. We need a few different words. Thankfully, it’s all us. And there’s one person that we can all reach out to to help us get to where we want to go. Her name is Assembly woman Lori Wilson. This lovely lady represents the assembly district that covers Solano, it covers Vallejo, there are all the people out there she represents, and we need to have our people get in touch with her people, and let her know that she’s just a few words shy of where we need to be, so we can give her time to help.
Vasquez: You know I appreciate the choir, but just talk to your folks. Talk to people. You know, the more they hear from us, the more they understand what this would mean, right? Cause a lot of people, as we’ve talked about, don’t know the experience of an incarcerated person. They see what’s on TV. They see what’s in movies. That’s all they know, right? So, it’s up to us to educate them on this to shift that paradigm on them. You know what I’m saying? So, they have an understanding. And it’s our lived experience in here is going to do that.
Sapp: And Lawrence, I’ll give you the last word. I just want to say thank you to all our panelists both those who have stayed until the end and Dean Chemerinsky who had to leave early, it’s been a great panel.
Lawrence Cox: I want to echo kind of what both of yall said in broader terms. Do the work, get out there, and get involved. A lot of us, we’ve been in it. You know what, keep that endurance and keep pushing. To those that haven’t been in it, get involved. Whether it’s talking to your legislative members, especially the author of this bill, whether it’s going partnering with, colleges, community college, the UC’s in your area. Educate, you know, enlist others to help you educate. Volunteer to go somewhere else in another county that you know you’ve never been to before, but maybe you know, need that education, too. Get the work done, ’cause it’s going to take all of us.
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