A student in my “History of the Present” class asked me, “Do Californians really believe slavery is okay?”

She referred to the defeat of California’s Proposition 6, which aimed to remove the so-called “slavery loophole” — the clause that allows forced labor as punishment for a crime — from the state’s constitution. The clause is so often associated with racism in the criminal justice system that it’s been held responsible for creating a new Jim Crow. 

California is not the only state that has considered eliminating its punishment clause. Other states, including Alabama, Oregon, Tennessee and Vermont have successfully abolished free prison labor.

But what should we make of this outcome in supposedly liberal California? For one thing, it is a reminder that California has a history of slavery, too, despite being imagined as a “free state.”

As a legal historian of slavery, I know that there’s more to understanding the failure of Prop 6 than we might think, and certainly more than racism alone can explain. If efforts at prison abolition are to succeed in California, we must contend with a broader history that evolved alongside but not out of slavery.

The punishment clauses in the 13th Amendment and in state constitutions were not particularly controversial when they were........

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