Did Amendment to Abolish Slavery Also End Forced Work for Prisoners?

A fascinating legal battle is shaping up over Amendment A, a 2018 ballot measure that eliminated a provision in the Colorado Constitution that allowed "slavery and involuntary servitude as punishment for a crime...in all circumstances."

A class-action lawsuit recently filed by two inmates, Richard Lilgerose and Harold Mortis, argues that the Colorado Department of Corrections is violating the letter of this law by forcing prisoners to work under threat of losing privileges, being placed in isolation or adding time to their sentence.

"Clearly, what Colorado voted on was an end to the practice of coercing and forcing people to work," says David Seligman of the Denver-based nonprofit Towards Justice, who's serving as the plaintiffs' attorney. "But that's what the state does. There's not really much of a dispute about that."

The defendants in the lawsuit, filed on February 15 in Denver District Court, are Governor Jared Polis, as well as the CDOC and its executive director, Dean Williams. Westword reached out to the governor's office and the CDOC; responding for both, Polis spokesperson Conor Cahill says, "We are not going to comment on pending litigation."

Amendment A took an unusual route to passage. As reported in an October 2018 Westword interview with Jumoke Emery, an organizer for the advocacy group Abolish Slavery Colorado, a similar measure had appeared on Colorado's 2016 ballot, but it fell short of passage by fewer than 20,000 votes, or less than 1 percent of the total. "After the fact, legislators and proponents of the amendment came to the consensus that the ballot language in 2016 was so confusing that many voters didn’t realize that they were actually voting against abolishing slavery in Colorado," according to that piece.

The concept returned as Amendment A in 2018, and while most of the coverage of the proposal portrayed it as the simple removal of antiquated and embarrassing language, Emery made the connection between the proposal and prisons. "However we feel about the criminal justice system, whether we feel like it's doing a great job or a bad job, we don't want our criminal justice system to be slavery," he told Westword. Colorado Public Radio also documented the opponents' concern that "the change could result in legal uncertainty around current prisoner work practices in the state."

Amendment A's language tackles the prison issue head-on. One section states: "The state recognizes that allowing individuals convicted of a crime to perform work incident to such convictions, including labor at penal institutions or pursuant to work-release programs, assists in such individuals' rehabilitations, teaches practical and interpersonal skills that may be useful upon their reintegration with society, and contributes to healthier and safer penal environments." Another section adds: "Because work provides myriad individual and collective benefits, the purpose of this proposed constitutional amendment is not to withdraw legitimate opportunities to work for individuals who have been convicted of a crime, but instead to merely prohibit compulsory labor from such individuals."

Amendment A won by a landslide in 2018, with more than 66 percent of the vote. And according to Seligman, "It's not at all clear to me that the voters of Colorado thought they were doing something merely symbolic. The Colorado Legislature referred a ballot measure to the voters that basically says, 'We're not saying people in prison can't work. We're just saying you can't compel them to work.' And that's what the current practice is."

This theme is underscored in the lawsuit by accounts from the plaintiffs, both of which touch on the devastation wreaked by COVID-19 on the incarcerated population.

Mortis, 32, suffers from asthma, and when he contracted the virus in October 2020, this pre-existing condition made his recovery that much more difficult, according to the suit. He is said to have still been suffering from symptoms the next month, when he was ordered to start working eight-hour shifts in the kitchen of the prison where he was being held. After he objected, prison personnel reportedly told him that he'd been deemed recovered and said he could be removed from the "incentive-living program" in which he was enrolled and lose "earned time," typically shorthanded as time off for good behavior, if he didn't capitulate. After months of his grievances going nowhere, he eventually did so.

Lilgerose, 45, also contracted COVID in October 2020, after which he was assigned to serve in a food-services job before he'd fully recovered, according to the complaint. When he stopped working that December, he was removed from his own incentive-living program and lost four days of earned time before returning to work involuntarily. Last month, the suit says, Lilgerose saw a corrections officer wake up a prisoner for a shift, and when the inmate said he was sick, the guard responded by threatening him with a taser and telling him he had to "either get to the kitchen or cuff up and go to the hole."

Compulsory work for incarcerated persons isn't only about power and punishment, Seligman suggests: "For prisons, it's a cost thing, which was especially a problem during COVID. But there are other ways to get people to work besides threatening them with what sometimes looks very much like solitary confinement. You can pay them, for example."

Click to read Richard Lilgerose and Harold Mortis v. Jared Polis, et al.