California will not consider amending its constitution to eliminate indentured servitude as a possible punishment for crime after Gov. Gavin Newsom's administration predicted that it could cost the state billions of dollars to pay minimum wage to prison inmates.
Democratic Sen. Sydney Kamlager said Thursday that she ran out of time and supporters after the measure barring involuntary work without pay last week fell seven votes short of the two-thirds margin it needed in the Senate.
She elected not to bring it back for another try after she said it still lacked support before lawmakers adjourned Thursday for a monthlong summer recess.
“One of the challenges we’ve had is people are conflating policy with a moral argument about taking out words that are historical, that are loaded, that are remnants of a slave past and that were implemented in ways that made people less human,” Kamlager said in an interview.
The policy questions could have been hashed out later, she argued.
The financial impact feared by Newsom's Department of Finance hasn't been an issue in three states — Colorado, Nebraska and Utah — that previously made similar changes, said Kamlager and Jamilia Land, who is both a spokeswoman for the California Abolition Act Coalition and a coordinator for Abolish Slavery National Network.
And voters in Alabama, Louisiana, Oregon, Tennessee and Vermont will consider similar ballot measures in November.
“It is the height of hypocrisy for California to be stepping onto the national stage as a haven of progressiveness right now, when its leaders continue to enshrine slave labor practices in the state," the Sister Warriors Freedom Coalition, a reform group that supported the amendment, said in a statement.
Fiscal analysts in Colorado predicted the measure passed there in 2018 would have a minimal effect on its budget. The amendment there included language intended to allow “legitimate opportunities to work” for people convicted of a crime, while barring compulsory labor.
Kamlager on Monday added similar language to her proposal in an unsuccessful attempt to attract more support. Currently, California inmates can face discipline for refusing to work, which can include reduced privileges like limits on visits, telephone calls and time out of their cells.
But Colorado inmates who were punished for refusing to work sued after the amendment passed.
State lawyers said in asking to have the lawsuit dismissed that Colorado voters did not intend to ban prison work programs. They argued that requiring inmates to work is part of their rehabilitation, but does not amount to forced labor and so does not violate the amendment.
As in California, Colorado inmates who refuse to work can lose privileges like being able to watch television or get snacks or have their sentence reduced. But the state's attorneys argued that their basic needs like food and shelter are still met and their sentences are not lengthened.
Corrections officials in the three states did not respond to questions about how their states were affected when the laws were changed.
California finance officials said that depending on court interpretations, the amendment might require paying minimum wage to more than 65,000 inmates who now make sometimes only a few dollars a day to fight wildfires, make license plates and cook, clean and do the laundry for fellow prisoners.
Two law professors also said the potential impact of the California proposal remained unclear, likely until legal challenges were resolved.
The state “would need to pay enough to prisoners that it would not be considered involuntary servitude,” University of California, Berkeley law school Dean Erwin Chemerinsky said. "But whether that would require the minimum wage would be an issue to be litigated unless the amendment was clear on this.”
Kathleen Kim, associate dean of equity and inclusion at Loyola Law School, supported the proposed amendment and said inmates likely could seek back pay or compensation for emotional harm or forced labor if the measure was enacted.
“What I foresee is a suspension of forced labor practices in prisons,” Kim said. But that likely wouldn't bring a flood of lawsuits, she said, because she predicted administrators would have to conform their regulations to the constitutional change.
Even programs that are deemed voluntary could still be seen as forced labor, Kim said, because inmates might feel they were not free to quit. She noted that lawsuits against private prison operators have been resolved in favor of immigrant detainees who were forced to work and not fairly paid.
An earlier version of the California proposal cleared the 80-member Assembly in March on a bipartisan 59-0 vote, though 17 members withheld their votes.
California’s first-in-the-nation task force on reparations for Black people supported the constitutional amendment in a report that recommended a “fair market rate” for prison labor, repeal of a law requiring “faithful labor” from inmates, and allowing inmates to decide which programs and jobs they will do.
A separate Senate-approved bill awaiting Assembly consideration would require state corrections officials to adopt a five-year plan to boost compensation to the level where inmates could afford to buy care packages, educational materials and maintain family connections.
