Ben Lowenthal: Why It's Hard To Pinpoint The End Of Slavery — Even In Hawaii - Honolulu Civil Beat

About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Monday is Juneteenth, which celebrates the emancipation of slaves. But the 13th Amendment has a loophole.

When did slavery end? The answer is elusive.

In Hawaii, for example, the constitution of 1852 included a clause abolishing slavery so any slave entering the kingdom was free as a matter of law. On top of that, slaveowners could not “enjoy any civil or political rights in this realm.” The constitution went into effect nearly a decade before the American Civil War.

But did that end slavery here? The constitution is one thing, but the Masters and Servants Act of 1850 allowed sugar companies to collude with the government and bringing in laborers through a questionable contract system.

Workers from China, Japan, Korea, Portugal and the Philippines immigrated here under government contract and were then assigned — without their say — to work for the private companies in the sugarcane fields and plantations throughout the islands.

Runaway workers were hunted down by the police or sheriffs. Then the law empowered district court judges to extend their contracts for absconding. If they refused to work, they were jailed.

One worker known to us now only as “a Japanese” named Mioshi challenged the law in 1891. After signing his labor contract with the government, he immigrated to Hawaii and learned he was heading to the Hilo Sugar Co. When he couldn’t get out of the contract, he sued and argued that being forced to work for the Big Island company was akin to slavery.

This was a dangerous challenge to the carefully choreographed scheme between the government and sugar companies that had been in place for decades. If Mioshi was right and his contract turned out to be unconstitutional, the industry could collapse.

The Hawaii Supreme Court rejected Mioshi’s argument and upheld the law. The chief justice at the time wrote that judges were “not … blind to the view which the statements and law-makers of this country have uniformly entertained toward this law.”

One justice, however, agreed with Mioshi.

“So we have before us the case of a laborer held for service under a contract, penally enforceable, if enforceable at all, to masters with whom he has never contracted; but he has come into their hands, without having the opportunity of choosing his employers, by a process suspiciously similar to that by which a Honolulu hack, horse and harness are hired out to a driver,” he wrote.

Manawainui Gulch bridge highway between Kanaio and Nuu Landing
Prisoners helped build the road between Kanaio and Nuu Landing on Maui. (Ben Lowenthal/Civil Beat/2023)

This justice believed it was an unconstitutional form of slavery. Paying Mioshi didn’t change that. “The fact that the laborer receives proper wages for his work does not take the case out of that condition of involuntary servitude or semi-slavery which is inconsistent with our Constitution and laws.”

The dissenter was Sanford Dole — the man who would later support insurrectionists in overthrowing the Hawaiian monarchy, push for annexation and become the first governor of the territory. Ironically, becoming a territory to the United States, the aim of many businessmen in Hawaii, put an end to this contract labor system they valued so much.

Pinning down slavery’s end on the mainland isn’t much easier. Monday is Juneteenth, a holiday recognized in 25 states and by the federal government celebrating the end of slavery. The thing is that slavery didn’t really end on June 19.

To understand Juneteenth, we have to start on New Year’s Day in 1863. That was when President Abraham Lincoln issued an executive order declaring that “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.”

Emancipation wasn’t instantaneous. The nation was at war. It happened gradually as the Union Army occupied more and more of enemy territory. The war raged on for another two years before the Confederacy surrendered in April 1865.

And ending the war didn’t free everyone. It took close to two months for Maj. Gen. Gordon Granger to get to Texas. When he got there on June 19, 1865, he formally put the state on notice that the enslaved people of Texas were now free men and women

Even then, freedom was on shaky ground. Could an institution baked into the law of several states and the constitution itself be abolished with a wartime executive order? Abolitionists and the president got to work amending the constitution.

Painted Portrait of Governor Sanford Dole.
Sanford Dole was a Hawaii Supreme Court justice who later became the first governor of the territory after Hawaii was annexed to the U.S.

A wartime Congress passed a proposal to amend the constitution. One by one during and after the war, the states slowly ratified the amendment. Georgia — occupied by federal forces and under a provisional government — was the ratifying state that clinched it and the 13th Amendment to the United States Constitution became law on Dec. 6, 1865.

Did slavery cease to exist then? Kind of. There’s a loophole in the amendment:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”

It’s oddly written. Slavery or involuntary servitude doesn’t exist, but if you’re criminally convicted, it can and often does exist — at least for you.

States took advantage of this loophole. After Reconstruction, police in the Deep South rounded up Black men on criminal charges like “vagrancy.”

Then prosecutors and judges convicted them. They’d be sentenced to work under a contract between the state and private companies that owned mines, cotton fields and other industries throughout the South. As one scholar, Douglas A. Blackmon, aptly said, it was slavery by another name.

Local authorities used prison labor too. “Hard labor” was a common sentence in 20th century Hawaii. It still haunts parts of our statutes to this day.

On Maui, territorial prisoners made it possible for us to drive around Haleakala. In 1950, prisoners built one of the most lonesome stretches of the island’s highways. A makeshift camp was set up on the hot and barren leeward slopes of Haleakala. They worked on the two-lane road connecting Kanaio to Nuu Landing near Kaupo. It was difficult and dangerous work.

County workers — paid $6 a day — were supposed to work on the project too, but they ran out of money. It was the prisoners paid at 20 cents a day who skillfully repelled down the sides of cliffs of the steep and remote Manawainui Gulch to bore holes in the rock, place dynamite in the howling wind, and clear the way for the road and the bridge spanning it.

Prisoners still work. True, like Mioshi and his contract, they get paid. But they aren’t protected by minimum wage laws. In 2010, some made 25 cents an hour.

And like Mioshi, prisoners have no say in where they’ll be sent within the prison system. Once sentenced, prisoners can be moved around to different institutions, including a prison in Arizona run by a private company. Incarceration rates in the United States exceed just about any other country.

So has slavery ended? Yes, it certainly has. But for those impacted by mass incarceration, it might not be by much.

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Latest Comments (0)

Booker T. Washington said that Hawaii plantations’ conditions were worse than slavery. In fact, a group of freed slaves who came to work the plantations quit after one year because the conditions were so bad. It is a testimony to the strength and fortitude of the Japanese workers that, in spite of this, they persevered and built the Hawaii that we have today - including digging the Waiahole ditch.

palakakanaka · 3 months ago

Slavery is abhorrent and has been made illegal throughout the world. The last country to outlaw slavery was Saudi Arabia in 1959 (that's another story). The United States were neither the first nor the last to pass these types of laws. I think it could even be reasonably concluded that if the Confederate States of America had prevailed, slavery would have ended in this Country as it did in all countries.

ClaudeRains · 3 months ago

The article, and a couple comments, gloss over the colonization of the Philippines, and the relationship of work for US companies and gov't there & overseas, or within the U.S. (and its other "territories"), and the lack of status, protections and benefits... That is different than what befalls an outright foreign citizen, though not fully converted to "private property" of the employer. A complicated story indeed; a brief article can only scratch the surface, of course.

Kamanulai · 3 months ago

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