By Guy Page

Proposal 2/Article 1, the anti-slavery amendment to the Vermont Constitution on Tuesday’s General Election ballot, is supported by criminal justice reform advocates who liken present-day incarceration to slavery.

This fact may surprise Vermonters who have only heard Proposal 2 (see screen shot for text as it appears on ballot) discussed as an effort to expunge the stain of slavery from the Vermont Constitution by specifically prohibiting indentured servitude, an early American practice in which businesses paid immigrants’ passage to America and then required them to work for several years.

Long after the Vermont Constitution banned slavery, the United States followed suit with the 13th 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.”

It’s that ‘except’ loophole that bothers systemic racial injustice advocates like Rev. Mark Hughes, a retired U.S. Army officer and executive director of Justice For All and coordinator of the Vermont Racial Justice Alliance. Far from banning slavery, the 13th Amendment “constitutionalized” it by allowing incarceration. Blacks have been suffering disproportionately from this new form of slavery ever since, mass incarceration critics like Hughes say.

On May 9, 2019, Hughes testified in support of Proposal 2 and raised the problem in testimony before the House Government Operations Committee of the Vermont Legislature:

“You have heard testimony that the US constitution [13th Amendment] makes the language of slavery in our constitution ‘academic’ and it suggests that it has ‘no practical consequence.’ But we have come to know that the 13th amendment constitutionalized slavery for the punishment of a crime, when duly convicted.

“Vermont State laws permit ‘imprisonment in lieu of payment of fines and costs.’ Article 1 of the Vermont Constitution provides an exception that permits slavery when ‘bound by law for the payment of debts, damages, fines, costs, or the like.’ Collectively, this is the literal criminalization of poverty, the new slavery!”

Ever since the Legislature gave final approval to Prop 2, the Vermont Racial Justice Alliance has been promoting its passage by voters on Election Day. Like Prop 5/Article 22, ratification into the Vermont Constitution requires a simple majority of statewide voters.

Far from congratulating Vermont for outlawing slavery, the Vermont Racial Justice Alliance says the Vermont Constitution actually led the way in empowering it — with its ‘indentured servitude’ clause.

“While Vermonters and the nation have been taught for generations that the state was the first to abolish slavery we now know that that no state constitutionally permitted slavery before Vermont,” the VRJA website says. “Exception clauses of 25 other state constitutions and Thirteenth Amendment have been informed by the exception clauses in the Vermont Constitution, leading to the introduction of convict leasing in the US.”

The data show that blacks are indeed incarcerated in Vermont prisons at a far higher rate than whites. The most recent (September 21, 2022) Vermont Department of Corrections data shows that 10.6% of the 1,321 convicts are black. According to July 1, 2021 U.S. Census data, 1.5% of Vermonters are black.

But there is significant disagreement on why. Some mass incarceration critics blame poverty and racist laws, practice and individuals in the criminal justice system. Defenders of the Vermont criminal justice system say blacks make up a disproportionate number of drug dealers and perpetrators of violent, gun-related crimes. Still others say both are true.

Why haven’t we heard about this?

Hughes has been direct in testimony and public statements about the link between Prop 2 and reducing mass incarceration — i.e. “the new slavery.” His organization is listed on the lawn signs supporting Prop 2. If anyone is hiding a controversial policy goal behind the unimpeachably righteous cloak of anti-slavery, it’s not Mark Hughes.

Vermont Daily Chronicle readers haven’t read about it because, until last week, we thought it was just a ho-hum housekeeping initiative. Who would oppose repealing slavery?

Certainly no one in the Vermont press has highlighted Prop 2 as a means to the end of reducing mass incarceration. For example, see reports by WCAX. There had been a few media mumbles about how it might require the Department of Corrections to pay inmate labor more than pennies an hour.

Advocacy groups (except Hughes’ group) were equally mum. A lengthy statement of support of Proposal 2 by the VT ACLU — a big opponent of mass incarceration — nowhere mentions mass incarceration. To the ACLU, a vote for Proposal 2 is a vote for Vermont values: “Vermont prides itself on values of freedom, liberty, justice, unity, and equality for all. By voting yes on Proposal 2, you can help bring our state one step closer to upholding those values.”

Then on Oct. 29, a reader emailed this question: “Guy, could you please tell me in a sentence or two what the h— this pile of gobbledy gook called Article 1 is supposed to mean? No one I know, including myself, can make any sense at all of this. I am suspecting it is some sort of radical left wing crap that someone is trying to ram through. Can you just tell me what a nay or yay vote will result in achieving?”

Which got us thinking and surfing the internet. Turns out four other states have similar referenda. And in some of those states, opposition to mass incarceration is front and center.

We returned to the Vermont legislative record. PR2 passed the House in 2020 for the first time (every amendment must pass two successive legislatures). Its passage was noted with these words by then House Speaker Mitzi Johnson:

As we work to ensure that all Vermonters are treated equally and fairly, it is crucial that we amend the archaic language of the Constitution to emphasize that slavery and indentured servitude in any form and for persons of any age are prohibited. People of all races and genders who live, work, and visit Vermont should feel welcomed and safe.

Johnson didn’t mention policy applications, including impact on mass incarceration. Her statement set the tone for others made by lawmakers of both parties at the time — it was all about fixing the 18th century Constitution’s archaic language about slavery and indentured servitude. Consider these on-the-record explanations of ‘yes’ votes by two Democratic Windsor County lawmakers:

“Madam Speaker: I am humbled to be able to vote yes, and I dedicate my vote to Dinah Mason, a human sold as property to Vermont Supreme Court Justice Stephen Jacob, of Windsor, Vermont, in 1783,” Rep. Elizabeth Burrows of West Windsor said.

Rep. Kevin Christie of Hartford (who is black) explained his vote as follows: “Madam Speaker: With a tear in my eye, my vote is clearly stated in the lyrics of our State Song: ʽThese Green Hills and silver waters are my home they belong to me and to ALL her sons and daughters may they be strong and forever free.ʼ”

In the 2020 Legislature, Prop 2 passed the House unanimously. But in 2021, three Republicans voted no: Rob Laclair, Brian Smith (R-Derby), and Larry Labor (R-Morgan). Laclair said yesterday he voted no because it was becoming clear to him, during committee testimony, that prison reform was somehow lurking in the background.

LaClair, a Barre Town rep not running for re-election, said a yes vote will encourage Hughes and other like-minded criminal justice reformers. “It will unfortunately give them a well-deserved victory lap,” he said.

Smith voted no because the Constitution is fine the way it is, including its language about slavery, he told VDC in an email Sunday:

“I believe that the State of Vermont abolished slavery sometime around 1777. Then President Lincoln did as well in 1865 … I could be off on the year. I don’t believe that anyone in Vermont has slaves today! Should this pass, what will be next? Minimum wage for incarcerated people? Young kids working on the farm? Or migrant farm workers (illegal or not). The Constitution is good just the way it is. We in Vermont’s Legislature should get back to the real business at hand … less spending, taking care of the state employees pension fund and making sure that our seniors have a quality of life they deserve.”

VDC only discovered the Hughes testimony on the Vermont Legislature website on Saturday. It is hoped that Vermonters reading this news article may have a more well-rounded perspective of the issues surrounding PR2’s adoption by the Legislature, and what ratification might (or might not) mean for Vermont criminal justice reform.

Guy Page is publisher of the Vermont Daily Chronicle. Reprinted with permission.