The use of prison labor, regulations, and protections are an important ethical issue in the criminal justice system. Prison labor is historically rooted in the abolition of slavery and is supported under the Thirteenth Amendment of the United States Constitution. As a direct response and solution to the abolition of slavery, the racial dis-proportionality and implications of incarcerated labor should not be ignored. When considering the issue of prison labor, consideration should be given to the benefits of labor, not for the government and owners of private prisons, but for the inmates themselves. Additionally, a balance must be struck between correctional law and human rights for inmates as workers.
The (Un)Forgotten History…
In 1865, the Thirteenth Amendment was passed, abolishing slavery throughout the nation. What many see as an end to the immoral practice of slavery was not actually an end, and rather a reforming of what slavery looks like. The elimination of slavery left the Southern states with a shortage of cheap laborers. In response, the slave market was turned into the convict leasing system. The Thirteenth Amendment institutionalized convict labor by expanding involuntary servitude as punishment for a crime (LeBaron, 2012). States would lease out prisoners to farmers, factory owners, and other businesses for low fees. This practice filled capitalist needs in the South by creating a cheap labor force and generating revenue for the state.
There were no legal safeguards in place for those working in the convict lease system. Workers would frequently work 16 hour days and would be beaten for failing to meet the daily quotas (Stein, 2012). If anything was accidentally damaged such as equipment or products, the workers would be severely punished. Convict laborers had no rights and were not seen as people. Inmate labor was about generating revenue for businesses and the state, and not about rehabilitation. There was no consideration given to what would happen to the prisoners after they had served their time. Often times, there was no life after the convict lease system. It was common practice to work prisoners to death because it was profitable to do so (LeBaron, 2012).
The racial dis-proportionality of the convict lease system mirrored that of slavery, with the inmates being almost entirely African American. This was no accident, and in fact was an intentional and deliberate result of racially corrupt law practices. Labor agents would pay law enforcement to arrest strong and able-bodied black men in order to enter them into the convict lease system. African American were arrested on false charges, unjustly convicted, and then forced into involuntary servitude (Stein, 2012). This practice had countless negative effects for African Americans. It helped support white supremacy by keeping minority races in positions of subservience. It also ruined the job market for free African American laborers who could not compete with the nearly free convict lease labor. For those not incarcerated, finding work became nearly impossible.
Things Stay the Same…
Since 1865, prison labor has evolved in some ways, while staying the same in others. Racial dis-proportionality in mass incarceration is still staggering, with high incarceration rates for African American and Hispanic communities. At the same time, rising prison populations fuel the construction of new prisons. These prison facilities in turn provide ample job opportunities and economic support for rural American communities (Stein, 2012). Prisons are more than a place to house convicted criminals as they serve their time. Prisons are a business and generate impressive revenue each year. The American Legislative Exchange Council (ALEC) has created and backed prisoner work legislature, contributing to inmates as a growing work force. Additionally, ALEC has supported strict sentencing laws such as the Three-Strike law which has helped grow the incarcerated population size (Stein, 2012). As the prison population rises, the work force pool rises, essentially guaranteeing the ALEC’s stream of revenue.
In modern prison labor systems, jobs include tasks such as firefighting, cooking, farming, assembly, digging ditches, and picking up roadkill. Prisons fall into two categories of ownership, including government prisons and privately owned prisons. Under the Prison Industries Enhancement Certification Program (PIE), up to 80% of wages can be taken from workers (Stein, 2012). These garnished wages go towards taxes, victim funds, and room and board charges for prisoners. Additionally, prisoner wages are used for the creation and maintenance of prisons. In some states, prisons are not required to pay inmates for their labor. While questionable in regards to ethicality, this free and often forced labor is upheld as just and fair under the Thirteenth Amendment.
Another significant ethical issue involves the protections and regulations for prison labor. There is no workers’ compensation, and workers are not allowed to unionize or formally strike. Privately owned prisons often lease their inmates out to companies who utilize the nearly free labor without obligation to provide health care or other employee benefits (Stein, 2012). Prison workers are not protected from labor exploitation in the way that free American workers are. In fact, prisons as employers are not subject to Occupational Safety and Health regulations (Holder, 2018). This lack of safeguards opens the door for inhumane labor practices. In order to have a picture of modern prison labor, prisons in California, Texas, and Louisiana should be studied.
California
California prisons offer a unique job opportunity in the form of voluntary conservation camps. There are 43 adult and 1 juvenile conservation camps in the state. Each year, inmates spend 3 million hours responding to emergencies while getting paid $1–2 per day (Hanks, 2018). In 2018, California wildfires became a significant problem for the state, and the use of inmates to assist in fighting fires was beneficial. However, inmates are not professionally trained firefighters and do not receive the same legal protections. Inmates are over four times as likely to incur injuries in comparison to professional firefighters, and six inmates have died fighting fires (Buncombe, 2018). Despite being a voluntary program, the low pay and lack of legal protections brings up the question of how ethical conservation programs are. Inmates save California $100 million dollars a year by fighting wildfires, showing a clear benefit for the state (Buncombe, 2018).
Unfortunately, when inmates are released they are often barred from ever becoming civilian firefighters due to their criminal history. Despite their conservation camp training and experience fighting wildfires, once released there is no evidence that their past labor is beneficial to securing employment. In 2013, the federal government ordered California to release over 100,000 prisoners due to overcrowding and unconstitutional living conditions. Lawyers for Attorney General Kamala Harris argued that they could not release prisoners because they were needed to fight the wildfires (Holder, 2018). Statements like this show a reliance on prisoners as a labor force, even when it conflicts with constitutional and ethical issues.
Louisiana
“But who will wash our cars…?”
California is not the only state that has voiced a need for prison labor. In Louisiana, similar statements have been made. Louisiana is the national leader in the use of imprisonment, and its high incarcerated population has led to the frequent housing of prisoners in local jails (Murdock & Miller, 2017). Inmates of both prison and jails are used for various labor tasks. Criminal justice organizations have attempted to reduce the mass incarceration that is occurring in Louisiana. The Justice Reinvestment Package proposed to release non-violent offenders, and would reduce the state prison population by 10% while also saving $260 million (Murdock & Miller, 2017). While a positive step for criminal justice reform, not all parties were supportive of releasing inmates.
Louisiana Sheriff Steve Prator publicly objected to reducing the prison population. He argued that this would take away “good ones” who are used each day to do jobs such as washing cars and changing oil (Murdock & Miller, 2017). Sheriff Prator also included that having inmates perform these tasks saves a lot of money for the state. The Sheriff’s comments, while in line with capitalism, do not support criminal justice reform or address the issues of overcrowding. It is also relevant to note that 2/3 of Louisiana’s prison population is African American (Murdock & Miller, 2017). This adds an additional unsettling layer to Prator’s comments about needing good and free workers. Arguments such as this bring up questions as to what is the highest priority in the criminal justice system. Incarceration as a source of profit creates ethical conflicts when there is financial motivation to incarcerate and maintain incarcerated individuals.
Texas
Texas is home to the largest prison population in the United States. With 140,000 prisoners in over 100 prisons, Texas also has the most profitable prison system in the country (Walker, 2016). The reason that Texas prisons are so profitable is that they mandate inmates to work and do not pay them for their labor. Jason Renard Walker, a current inmate in Amarillo, Texas, discusses the labor system from a first-hand perspective. Labor is managed by Texas Correctional Industries (TCI), who force inmates to work without pay. Refusal to perform job duties results in disciplinary actions. In 2014, TCI earned nearly $89 million; however none of this money was used to pay inmates for their labor (Walker, 2016). Instead, inmates receive good time credits which can be used to reduce their sentence. The reality of good time credits is that they are accrued slowly, and are of little significance for those serving lengthy sentences.
As in California, a federal judge ruled that overcrowding in Texas prisons violated Eighth Amendment rights against cruel and unusual punishment. While California responded by looking to release non-violent offenders, Texas had a different approach. The Correctional Corporation of America signed contracts with sheriffs in poor and rural counties to build new jails and share their profits (Walker, 2016). Similar to the convict leasing system, Texas made deals to export inmates to other facilities in exchange for fees. This benefited rural communities by providing jobs and economic support, while also allowing the state to keep their prison workforce and maintain revenue.
Protests from the Inside
Inmates have made efforts to protest what they deem as unfair and unethical working conditions. Unfortunately, by the nature of incarceration, their legal options and rates of success are limited. In 1987, two inmates attempted to sue their prison over a work policy. In O’Lone v. Estate of Shabazz, two Muslim inmates explained that they were required to work off-site all day, and this caused them to miss an important religious service. The men sued their New Jersey prison, arguing that the forced prison work infringed upon their First Amendment right to freely exercise their religion (Kanaboshi, 2014). Ultimately, the court upheld the constitutionality of the prison, citing that the prison itself had the authority to require inmates to work, despite religious interests.
Perhaps one of the most well-known prison riots is the Attica Prison uprising in 1971. Upset with poor living, medical, and working conditions, the prisoners made a list of demands to the state of New York. Their Manifesto of Demands stated that the prisoners were being exploited in order for the state to profit, and that inmates were not developing working skills that would be accepted for employment upon release (Attica Liberation Manifesto, 2011). Initially, any prisoners found in possession of the manifesto were given 60 days in solitary confinement as punishment. After their demands were met with harsh feedback, the prisoners became more upset. Eventually tensions broke over and a riot erupted in the prison. Over 30 guards were taken hostage by prisoners while the state and prisoners attempted to negotiate the list of demands. On the fifth day of negotiations, 550 New York State Police stormed the prison and opened fire on both prisoners and guards who were in the way (Getlen, 2016).
The state’s response to the Attica uprising has been criticized as excessive force and punishment. Once the prison was re-claimed by law enforcement, the violence did not stop. Prisoners were shot, stabbed, and tortured, while racial slurs and praises of white power were shouted. In the aftermath, 29 prisoners and nine hostages had been killed (Getlen, 2016). During the brutal attack, prisoners attempted to form a circle of protection around the guards who were hostages, however the attacking law enforcement officers shot them. The Attica Prison riot is an example of a protest that went too far. It sent a frightening message to other prisoners of the potential consequences of speaking up about personal and worker’s rights.
The most recent prison strike is the 2018 National Prison Strike, from August 21 to September 9. The second item in the list of demands called for an immediate end to prison slavery (IWOC, 2018). Prisoners protested using non-violent civil disobedience and refusing to show up to their jobs. According to The National Lawyers Guild Prisoners’ Legal Advocacy Network, there has been staff abuse, destruction of prisoners’ personal property, and preemptive lockdowns in response to the protest (IWOC, 2018). Since prisoners are not able to unionize and are not protected by any labor regulations, they feel that their only option is to go on strike. Such strikes come at a cost and are met with punishment by guards.
Are there Benefits?
Prison labor and providing jobs to inmates is not without benefits. In fact, research has found that prison labor has a positive effect on inmates by reducing rates of recidivism. According to the California Department of Corrections, conservation camps have reduced recidivism rates and helped inmates give back to their communities (Rawlings, 2013). Because working in conservation camps is voluntary, the inmates fighting California wildfires share that they are happy to be doing so. Other evidence shows that prisoners working for outside companies also helps to reduce recidivism by providing marketable skills (Bourge, 2002). Gaining work experience and being able to put that experience on a resume may help an inmate secure a job upon release. Job security is an important factor that is linked to likelihood that an inmate will commit crimes in the future. A 2003 study found that upon release, prison workers were 24% more likely to obtain a full-time job (Atkinson & Rostad, 2003).
In addition to improving recidivism rates, inmate job assignments may help boost morale among prisoners. When asked how they feel about their job, one inmate explained that working is less about a wage and more about feeling human (Bozelko, 2017). For inmates serving a long sentence, a job can provide structure, routine, and a sense of fulfillment amongst years of monotony. Job performance is also linked to a sense of self-esteem, which can help combat feelings of depression or worthlessness. Inmate workers may also help allow for special programs to exist inside of prisons, such as gardening, training dogs, and library services. By having inmates work, it helps to offset the costs of programs and prevent them from closing due to a lack of funding.
Another benefit of prison labor is increased safety in prisons. James Bennett, former Federal Bureau of Prisons Director, attributes prison disturbances to a lack of inmate jobs (Atkinson & Rostad, 2003). This is based on the theory that reducing idle time for inmates will also reduce tension and the opportunity for conflict to arise. Work programs provide structure and tasks to focus on, which helps prevent inmates from arguing and fighting. While this is a benefit for prison guards, a safer prison is also an important value for inmates.
From the benefits of inmate work, it is clear that eliminating inmate work assignments is not the right solution. Instead, looking at alternative policies and prison reform may provide solutions to the problems of institutionalized racism and the prison industrial complex. From inmate strikes and complaints, the problem is not that of having to work, but instead the conditions of their work. Prison labor is not wrong, however the lack of safeguards to protect prisoners from exploitation is.
Looking Forward
Currently, the low pay rates and cut of wages being garnished makes it nearly impossible for inmates to earn and save any money while incarcerated. A lack of money and adequate support system upon release is directly linked to high rates of recidivism and re-incarceration (Decker, n.d). One way to reform prison labor is to set a living wage for inmate workers. This wage does not need to match the state minimum wage of the area, but should allow for the prisoner to earn money after the garnishment of wages. This will still allow for legal fees and taxes to be paid by inmate workers. It will also allow the work to be beneficial to the inmates themselves. Third party businesses can still employ prison laborers, but will be required to pay livable wages. Fair pay is one way to help protect inmates against exploitation.
As the system exists now, there is monetary incentive for law enforcement, the government, and private owners to keep prisons full. This profitability is a temptation that creates an ethical dilemma and possible conflict of interest in arresting and convicting individuals. To address this issue, two things should be done. The first is a shift to focusing on restitution as an alternative to incarceration. Organizations such as The Sentencing Project have worked to advocate for this change. Restitution focuses on the victims of crimes and how the perpetrator can help to make things right by compensating them for any losses (Decker, n.d). This helps to reduce overcrowding in prisons by reducing the number of people who are incarcerated. Offenders are able to maintain employment outside of prison and work to pay their restitution. Additionally, the money is given to the victims of crimes rather than the state or third parties. With prisons earning millions of dollars each year, it can be argued that victims have a right to some of that money.
Another problem that must be addressed is racism in the criminal justice system. From the history of slavery, to convict leasing, to the racial dis-proportionality in prisons today, the numbers and contextual history do not allow us to say with confidence that slavery does not exist in America. While ending racism is an issue that extends beyond the criminal justice system, steps can be taken in reforming legal policies to help combat racism in our communities and prisons. The Sentencing Project recommends implementing racial impact statements, which will explain how proposed laws or policies will have negative consequences for minority races (Hackett, 2018). Other areas to focus on are drug laws, which attribute to racial dis-proportionality in prisons. Outdated and poorly written drug laws allow for racial disparities in arrest, convictions, and sentencing (Hackett, 2018). All of the key players in the criminal justice system, including law enforcement officers, lawyers, judges, and correctional officers must be held to higher standards of accountability in their use of discretion.
Prison labor has the potential to be beneficial for prisoners, states, and communities. With research linking inmate work to lower rates of recidivism, prison labor provides an opportunity to help inmates experience personal growth, learn valuable skills, and earn money to help them re-enter society upon release. In order for prison labor to be ethical, certain areas must be addressed. The history of slavery and convict leasing must be considered when creating and enforcing prison labor policies and regulations. The exploitation of prisoners for private or government profits must end. Additionally, the institutional racism that exists in the criminal justice system should be combated until the racial demographics in prison reflect that of the surrounding communities.
References
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