Colorado voters passed Amendment A, a ballot measure touted as an end to slavery in state prisons in 2018. The amendment eliminated the penal exception clause, which allowed the state to use forced labor in addition to incarceration as a punishment for crime.
Colorado was the first of eight states to repeal its penal exception clause. Advocates for the policy change hoped it would prevent forced labor for little pay. Colorado pays incarcerated workers between US$0.33 and $1.61 per hour for maintenance jobs such as cooking, cleaning and groundskeeping.
Nationally, the elimination of state penal exception clauses has had little impact on incarcerated workers. Lawsuits in Colorado and Alabama have alleged that forced labor continues despite the policy change.
My research examines prison conditions and programming, including work programs. I wrote my doctoral dissertation on state and federal prison industries, which sell goods produced by incarcerated workers to government agencies.
Colorado lawsuit alleges abuse
In 2022, the plaintiffs who brought a class action lawsuit, Mortis v. Polis, alleged that the Colorado Department of Corrections violated the amended state constitution by punishing incarcerated people who refused mandatory work programs. The punishments included solitary confinement and use of force.
Incarcerated people also reported the loss of good time and earned time credit, which are two sentence reduction incentives based on participating in work programs. Additionally, they reported loss of privileges like phone calls and family visits.
During the trial, David Lisac, deputy director of the Colorado Department of Corrections prison operations, testified. He said the department had neither changed its policies in response to the amendment nor attempted to ascertain whether the department was in compliance with the amendment.
In February 2026, the court ruled that the department and Gov. Jared Polis violated the state constitution by forcing people to work. The ruling specified that use of force and isolation for failure to work were unconstitutional. On the other hand, the court dismissed the plaintiffs’ claims that withholding privileges or credits constituted involuntary servitude.
Whether the decision will have an impact on work conditions in Colorado prisons remains to be seen.
History of the penal exception clause
When the 13th Amendment to the U.S. Constitution abolishing slavery passed in 1865, the penal exception clause allowed for slavery only as punishment for a crime. Along with Jim Crow laws that criminalized Blackness, the loophole allowed for the legal re-enslavement of Black Americans to financially benefit the state. The penal exception clause also allowed prisons to continue to operate as they had prior to the 13th Amendment. Historically, prisons in Colorado and across the U.S. used the labor of incarcerated workers and paid them little to nothing.
This included the establishment of state penal farms on former slave plantations and widespread convict leasing of incarcerated workers’ labor to private companies. Chain gangs to build railroads were also established during this time.
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The Colorado Constitution, drafted and approved a decade later in 1876, included a provision that mirrored the 13th Amendment. Article II, Section 26, Colorado’s penal exception clause, stated: “Slavery prohibited. There shall never be in this state either slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted.”
Opposition to forced labor in prison took many forms. Those include the Attica uprising in 1971, attempts to unionize incarcerated workers and prison labor strikes.
Colorado’s penal exception clause was eliminated in 2018. Following Colorado, legislation and ballot measures were introduced in many states and at the federal level.
Incarcerated people need work
Colorado and states across the country use incarcerated workers to do almost all the jobs of running the prison. Paying prevailing wages would significantly increase operating expenses. A cost-benefit analysis of paying incarcerated workers full wages for their work, by Edgeworth Economics, an economic consultancy firm, estimated the increase of expenses to fall between $8.5 billion to $14.5 billion nationwide.
Incarcerated people use earnings from their work to purchase food and hygiene products from the commissary. In addition, many derive meaning and purpose from work, which is important for mental health.
Refusing to work can also lead to harsh consequences. The Colorado lawsuit plaintiffs alleged that they experienced solitary confinement, isolation in their cells, loss of phone calls and visits, and loss of good time and earned time credits for failure to work. Solitary confinement harms mental health, and phone calls and visits are essential for family connectedness. Good time and earned time credits accrued through work can speed up release and are an important motivator to work, regardless of working conditions.
Simultaneously, incarcerated people risk retaliation for speaking out about prison conditions. For example, the incarcerated men who started the Free Alabama Movement to end forced labor in 2013, and featured in the popular 2025 documentary film “The Alabama Solution,” were later transferred to solitary confinement.
Incarcerated workers rarely considered employees
Some prison labor is recognized as employment and paid the minimum wage – in theory. Nationally, private-sector Prison Industry Enhancement Certification Program and work release employers are required to pay the prevailing minimum wage to their incarcerated employees. However, states always take deductions for room and board, transportation, victims services, court fees and the like. In some cases, up to 80% of an incarcerated person’s wages are deducted. That means take-home pay often remains low.
But 97.4% of incarcerated workers labor for government entities directly and are paid less than a dollar an hour.
They also lack protections. They are not covered by the Fair Labor Standards Act, which provides minimum wage rights and provisions for overtime pay. Nor are they covered by the Occupational Safety and Health Administration, which enforces worker’s compensation and rights to safe working conditions. If an incarcerated worker is injured on the job, they are entitled to medical care, like anyone else in prison, but they have no right to financial compensation or sick days.
Adapting the private-sector pay structure for all work in prison could result in fair wages – that’s if deductions are revised to be fair as well. Researchers estimate that paying fair wages to incarcerated workers could produce up to $20.3 billion annually in income to them directly, and benefits to families, crime victims and the economy through child support payments, restitution payments and taxes. Furthermore, fair wages would allow people to support themselves during incarceration and save for when they are released, which could have a meaningful impact on well-being during and after incarceration.
Reforms, such as adjusting pay structures or removing the penal exception clause, may improve working conditions for incarcerated people. But researchers have asserted that prison labor will always be inherently coercive. Incarcerated workers have limited options to earn money and work toward an earlier release date, which undoubtedly influences their choice to work.
Read more of our stories about Colorado.
