Almost certainly, Oregon’s Ballot Measure 112, which seeks to remove from the state Constitution a provision allowing slavery as a punishment for a crime, will pass.
The measure has gotten very strong support and little visible opposition. The site Ballotpedia said, “If you are aware of any opponents or opposing arguments, please send an email with a link.” Everyone wants to eliminate any kind of approving reference to slavery, right? (Well, presumably almost everyone.)
But what exactly does “slavery” mean?
The answer is not as obvious as you might think, and the search for it could lead to a few cases coming soon to an appellate court near you.
The Oregon Constitution says, and has for generations, this about slavery: “There shall be neither slavery, nor involuntary servitude in the state, otherwise than as a punishment for crime, whereof the party shall have been duly convicted.” Take note of that exception, which echoes similar language in the U.S. Constitution.
The main change offered in the ballot measure is dropping the section starting with “otherwise than …” and adding this: “Upon conviction of a crime, an Oregon court or a probation or parole agency may order the convicted person to engage in education, counseling, treatment, community service or other alternatives to incarceration, as part of sentencing for the crime, in accordance with programs that have been in place historically or that may be developed in the future, to provide accountability, reformation, protection of society or rehabilitation.”
This new second section refers most explicitly to alternatives to incarceration, but it leaves open the question of what exactly state or county officials could require of someone who is incarcerated. When the Oregon Legislature was reviewing the proposed ballot measure, Rob Persson of the Oregon Department of Corrections testified that his agency “recognizes that compelled prison labor is sometimes perceived as modern-day slavery. DOC believes that perception is misplaced, at least with respect to the manner in which adults in custody are engaged in prison work programs in Oregon’s prisons.”
His concern on the state level might be countered by another amendment to the state Constitution which voters okayed back in 1994 (though there could be a legal question about whether the new amendment might in part override the old one). The 1994 change said, “All inmates of state corrections institutions shall be actively engaged full-time in work or on-the-job training. The work or on-the-job training programs shall be established and overseen by the corrections director, who shall ensure that such programs are cost-effective and are designed to develop inmate motivation, work capabilities and cooperation. Such programs may include boot camp prison programs.”
But that provision doesn’t seem to refer to county jails.
Given that, the Oregon State Sheriffs’ Association argued that, “Participation by (adults in custody) in these programs is voluntary, but the way this measure is written any involvement in a jail program by an (adult in custody) without an order from a court, probation officer or parole officer would likely be seen as involuntary servitude.”
So what exactly is slavery (or “involuntary servitude”)? Many of us have a picture in our mind of what it is – we might think of the pre-Civil War, southern states variety – but as a matter of history slavery has existed in many forms, even within the United States, not to mention internationally.
What’s the legal definition of it?
That becomes a little complicated; the legal definitions have changed by time and place. One online definition of slavery says it is, “A civil relationship in which one person has absolute power over the life, fortune and liberty of another.” Another from the online Law Dictionary said, “A person who is wholly subject to the will of another; one who has no freedom of action, but whose person and services are wholly under the control of another.” Ordinary incarceration seems to come pretty close to either definition.
The new amendment offers no definition of slavery.
What I’m seeing here is the kind of ambiguity of which appellate court cases are made.
A disclosure: I voted in favor of Measure 112. All of the above notwithstanding, it establishes an improved moral framework for Oregon law and removes an embarrassing – not to say disgusting – piece of Oregon law.
But that doesn’t mean we’ve heard the end of it once the election is over.
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