The Thirteenth Amendment to the United States Constitution, adopted in 1865 at the conclusion of the Civil War, abolished slavery across the United States with one notable exception. According to the amendment, “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” (emphasis added). In other words, slavery and involuntary servitude remain constitutionally acceptable forms of punishment for individuals who are convicted of crimes. This loophole has a disturbing history of being used to target Black Americans in the aftermath of the Civil War, with local authorities imprisoning thousands of formerly enslaved people on faulty charges and exploiting their labor. In upholding the legality of forced prison labor, the Virginia Supreme Court even went so far as to describe a prisoner who challenged the practice as a “slave of the State.” Ruffin v. Commonwealth (1871).

Even more disturbing is the continued exploitation of prison labor today. The leading study on this issue, “Captive Labor: Exploitation of Incarcerated Workers,” was published in 2022 by the American Civil Liberties Union (ACLU) alongside the University of Chicago Law School. The study exposed the number of vital public services that rely upon the unpaid, involuntary labor of incarcerated Americans (including the upkeep of the prisons themselves). According to the report, of the 1.2 million people in the U.S. who are currently incarcerated in state and federal prisons, approximately two-thirds are employed in the prison system. These individuals produce nearly $11 billion worth of goods and services each year, but earn just 13 to 52 cents per hour on average. Not only are prisoners denied minimum wage and the freedom to choose to work, but they are also denied basic workplace health and safety standards otherwise guaranteed by state and federal laws. Moreover, economists have found “negative externalities created by prison labor,” including a correlation to lower wages and employment growth in counties that use prison labor.

This issue has become even more troubling during the pandemic, as the ACLU report reveals. Workplace health and safety standards, already a major concern during the pandemic, were found to be greatly lacking in prisons. The report details the ways in which incarcerated laborers were made to take on high-risk frontline health roles in states such as Michigan, Missouri, New York, Oregon and Texas, placing them at high risk for contracting COVID-19. At Proskauer, we have witnessed this firsthand. As an example, one of our pro bono clients was required to fill hand sanitizer bottles during the height of the pandemic in 2020. Hand sanitizer is a highly flammable product, and yet there was no safety plan in place and our client was paid under a dollar an hour for this essential work.

Fortunately, there is a growing movement to address forced prison labor. Voters in four states (Alabama, Oregon, Tennessee and Vermont) have recently taken steps to ban involuntary servitude and slavery in their state constitutions. A dozen additional states, including California, are considering similar measures. In New York, Assembly Member Harvey Epstein has sponsored an amendment to the state constitution that would ban the “slavery loophole” and mandate minimum wage pay and basic workplace health and safety standards in prisons. With no action on the federal level expected, these grassroots, state-led initiatives appear to be the best hope for reform.

Denying fair wages and safe working conditions are violations of fundamental human rights, as detailed by the ACLU report, but also constitute a greater danger to society. The real price of tolerating forced prison labor is the way it diminishes all of us and, most especially, our standing as a nation committed to justice. In the words of Eleanor Roosevelt:

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world.… Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”

Proskauer interns Mrinalini S. Wadhwa and Rishaad Bhushan assisted with this post.

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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.