By: Payton Ward
Introduction
In a country incarcerating nearly 1.9 million people,[1] 61% of inmates have work assignments[2] and “have been stripped of even the most minimal protections against labor exploitation and abuse.”[3] Oftentimes, prison workers are assigned to work under dangerous conditions and generate billions of dollars worth of goods, with little to no pay.[4] If they refuse to work, they face major repercussions.[5] Few remedies are available to them, as the 13th Amendment of the Constitution and the Fair Labor Standards Act[6] afford them little to no protection.
The 13th Amendment
The 13th Amendment was passed in 1865 and made slavery and involuntary servitude illegal, “except as punishment for crime.”[7] This exception clause of the 13th Amendment opened the door for mass incarceration, modern-day slavery, and encouraged criminalization / re-enslavement of minorities.[8] Unsurprisingly, this Amendment is often challenged.[9] Advocates for prison labor rights have said that the 13th Amendment has simply replaced slave labor with free prison labor and is, in essence, modern-day slavery.[10]
What Prison Labor Looks Like Today
Incarcerated workers are producing goods and/or services for private companies, engaging in agriculture work, working for emergency services, and much more.[11] This work is often involuntary, with risks of longer sentencing, solitary confinement, abuse, and lack of visitation rights if they refuse.[12] According to the American Civil Liberties Union, 70% of workers said their prison wages did not help them afford necessities, 64% were concerned with work safety, 70% received no job training, and 76% reported being forced to work.[13] Prison labor exploits incarcerated workers, their families, and taxpayers while generating major profits for private corporations, states, and prisons.[14] Inmates’ minimal wages are often subject to fees for room and board.[15] But these fees don’t substitute federal funding and private prisons are collecting additional funds, allowing prisons to pocket taxpayer money.[16] Prisons are using less than 1% of their budget to pay incarcerated workers.[17]
States are also benefiting from incarcerated labor.[18] In Washington state, incarcerated workers’ pay ranges from 65 cents to $2.70 an hour, while the state itself has a minimum wage of $16.28 per hour. In 2022, Washington state acquired $46.2 million from incarcerated labor.[19] Like Washington, many states believe they are saving a significant amount of money by having this cheap labor force available.[20] While the employers themselves might benefit, this hiring practice hurts taxpayers by allowing corporations and institutions to profit. Taxpayer money allocated to running federal prisons is being pocketed by institutions by creating a workforce of unpaid labor.[21] Corporations are able to set up joint ventures to sell items nationwide through the Prison Industry Enhancement Certification Program. This program is supposed to allow for realistic working conditions and prevailing wages, yet often members of the program are violating those wage requirements.[22] Incarcerated workers are not required to be paid minimum wage, and nationally are only paid an average of 13 to 52 cents per hour. [23] An article from 1973 notes the average pay per day was 34 cents and, unfortunately, not much has changed since. [24] Many states do not disclose the actual wages earned by incarcerated workers, and when states do decide to disclose some information, access to it is limited.[25] Some states do not pay incarcerated workers at all.[26] Corporations, such as Gold Medal Flour, Coca-Cola, Frosted Flakes, Dominos, and Papa John’s, are benefiting from this cheap labor alternative[27] that should be illegal.
Incarcerated work often goes beyond facility maintenance and producing goods for private companies. Thirty states use incarcerated workers for emergency services, many of which are inherently dangerous.[28] During Covid-19, incarcerated workers were making masks, digging graves, and transporting bodies.[29] Yet, these workers were denied access to early vaccines, making it seem as if their lives were disposable.[30] Incarcerated workers in southern states often engage in heavy architectural operations[31] on farms that were former slave plantations, further mimicking slave labor of the past.[32] Without regulating workplaces and providing adequate pay, how is prison labor different from slave labor used years ago?
Working conditions for incarcerated workers are often lacking, with inadequate water sources available and no sunscreen for those working outside for over 12 hours at a time. They are designated little to no sick days.[33] Due to these conditions, former inmates have reported that some days guards or horses would collapse from the heat, while incarcerated workers were still required to work despite the elements.[34] Incarcerated workers have also been forced to help with hurricane clean up and forest fires, at times working up to 24 hours and only earning $2 a day.[35] Researchers have found hundreds of workplace injuries suffered by incarcerated workers, including inmates being hit by cars, losing limbs, or being impaled.[36] The Occupational Safety and Health Administration requires providing safe workplaces, unless workers are incarcerated.[37] The Bureau of Prisons provides some federal health and safety regulations for incarcerated workers, but states determine these protections individually, and some states do not provide any protections.[38] Often when injuries do occur there are little to no protections, with many barriers to sue.[39]
What Better Training, More Safety Regulations, and Higher Pay Could Do
Advocates say that paying inmates minimum wage would have a positive economic impact by providing workers with resources to support their families and themselves upon release. [40] Some advocates suggest creating a system that holds a portion of wages earned in a fund to only be accessed post incarceration.[41] What about inmates who are in prison for life? One suggestion would be allowing a certain wage percentage to go to family members outside of prison. However, this has its own risks such as coercion by family members. Another suggestion would be to allow these inmates to access these funds on a payment schedule. Allowing inmates to leave incarceration with money for transportation, housing, food, etc., will hopefully decrease recidivism.[42] Properly training inmates can also lead to better rehabilitation and societal integration post incarceration.[43] In theory, the goal of incarceration is rehabilitation and successful reentry of the formerly incarcerated into our society.[44] The lack of proper training fails to give inmates transferable skills upon exiting the system and the current working conditions do nothing further than create modern-day slave labor and a lack of resources for incarcerated workers upon release. Advocacy “is not for no work for incarcerated individuals, but for adequate pay, humane conditions, safe conditions and voluntary work:”[45] the bare minimum.[46]
[1] Ashley Nellis, Mass Incarceration Trends, THE SENT’G PROJECT (Jan. 25, 2023), https://www.sentencingproject.org/reports/mass-incarceration-trends/; Alex Resney, Mass Incarceration in the United States, BALLARD BRIEF (2019), https://ballardbrief.byu.edu/issue-briefs/mass-incarceration-in-the-unitedstates#:~:text=The%20United%20States%20contains%20only%205%25%20of%20the,those%2 0from%20disadvantaged%20neighborhoods%20and%20people%20of%20color (“The United States contains only 5% of the world’s population, but accounts for a quarter of prisoners worldwide”).
[2] What are Prison Work Programs & How Common Are They?, USA Facts (Sep. 22, 2022), https://usafacts.org/articles/what-are-prison-work-programs-and-how-common-are-they/#:~:text=Work%20programs%20are%20available%20in%20all%2050%20states,are%20available%20in%20about%20half%20of%20all%20prisons (inmates may participate in prison operations, prison industry programs, public work programs, and private company work).
[3] Captive Labor: Exploitation of Incarcerated Workers, ACLU (June 15, 2022), https://www.aclu.org/news/human-rights/captive-labor-exploitation-of-incarcerated-workers.
[4] See Sarah Payne, The Economic Impact for Incarcerated Individuals and Taxpayers, Princeton Legal J. (2021), https://legaljournal.princeton.edu/the-economic-impact-of-prison-labor-for-incarcerated-individuals-and-taxpayers/.
[5] Robin McDowell & Margie Mason, Prisoners in the US Are Part of a Hidden Workforce Linked to Hundreds of Popular Food Brands, Anchorage Daily News (Jan. 29, 2024), https://www.adn.com/nation-world/2024/01/29/prisoners-in-the-us-are-part-of-a-hidden-workforce-linked-to-hundreds-of-popular-food-brands/ (risking chances of parole and other punishments if refusing to work); see also U.S. Prison Labor Programs Violate Fundamental Human Rights, New Report Finds, UChi. News (Jun. 16, 2022), https://news.uchicago.edu/story/us-prison-labor-programs-violate-fundamental-human-rights-new-report-finds (discussing punishments for refusal to work); see also Megan Russo, Regulating Prison Labor, The Regul. Rev. (Oct. 20, 2021), https://www.theregreview.org/2021/10/20/russo-regulating-prison-labor/ (discussing how most federal prisons require inmates to work).
[6] Id. Russo (discussing the 13th Amendment); see also Payne, supra note 5 (discussing the Economic Realities Test under the FLSA and how inmates do not qualify as employees).
[7] U.S. Const. amend. XIII.
[8] Captive Labor, supra note 4 (discussing effects in the Jim Crow era); see also McDowell, supra note 6 (discussing how incarcerated workers producing mass amounts of “goods are disproportionately people of color”, demonstrating another issue that should be discussed further in its own article); Payne, supra note 5 (discussing how slavery was not taken away for incarcerated individuals).
[9] McDowell, supra note 6 (discussing how the 13th Amendment is predicted to be on the ballot in 12 states this year).
[10] See Russo, supra note 6 (Tarra Simmons describing prison labor as “an evolution of slavery”); McDowell, supra note 6 (discussing how “slavery has not been abolished”).
[11] Prison Labor in the United States, Investigate (Nov. 2021), https://investigate.afsc.org/prison-labor-united-states.
[12] McDowell, supra note 6; see also U.S. Prison Labor Programs, supra note 6.
[13] Captive Labor, supra note 4.
[14] Payne, supra note 5.
[15] Id.
[16] Id.
[17] Captive Labor, supra note 4.
[18] Associated Press, Proposed Bill Would Pay Incarcerated Workers Minimum Wage, US News, (Feb. 6, 2023), https://www.usnews.com/news/best-states/washington/articles/2023-02-06/proposed-bill-would-pay-incarcerated-workers-minimum-wage (“Washington should not profit from involuntary servitude”).
[19] Id.
[20] Drew Mikkelsen, Legislator Wants to Pay Inmates Minimum Wage for Prison Jobs, K5 (Dec. 16, 2022), https://www.king5.com/article/news/local/pay-inmates-minimum-wage-prison-jobs/281-3c42badf-52ba-41af-93f5-e20d790c47ae; see also Washington State Minimum for 2023, 2024, (last visited Feb. 13, 2024), https://www.minimum-wage.org/washington.
[21] Payne, supra note 5.
[22] What are Prison Work Programs, supra note 3.
[23] Captive Labor, supra note 4.
[24] James Maiwurm and Wendy Maiwurm, Minimum Wages for Prisoners: Legal Obstacles & Suggested Reforms, U. Mich. J. of L. Reform, at 196 (1973).
[25] What are Prison Work Programs, supra note 3.
[26] Prison Labor in the United States, supra note 12.
[27] McDowell, supra note 6 (discussing the connections with prison labor to Tyson Foods, Sam’s Club, Burger King, Costco, Kroger, and Land O’ Lakes).
[28] Captive Labor, supra note 4.
[29] Id.
[30] Id.
[31] McDowell, supra note 6.
[32] Russo, supra note 6.
[33] Payne, supra note 5 (rejecting sick pay that has been rejected by courts for employees but does not provide protection for incarcerated workers).
[34] McDowell, supra note 6.
[35] Payne, supra note 5; Josh Kovensky, It’s Time to Pay Prisoners the Minimum Wage, The New Republic (Aug. 15, 2014), https://newrepublic.com/article/119083/prison-labor-equal-rights-wages-incarcerated-help-economy.
[36] Russo, supra note 6.
[37] Id.
[38] Id.
[39] Id.; see also McDowell, supra note 6(discussing virtually no protections to being seriously injured or killed on the job).
[40] Russo, supra note 6 (requiring less reliance on welfare upon release).
[41] Captive Labor, supra note 4.
[42] Mikkelsen, supra note 21.
[43] Russo, supra note 6 (discussing how regulating safety creates less injuries upon release and increased ability to work upon release).
[44] Maiwurm, supra note 25 (“Most important attribute of prison labor is its ability to impart healthy work attitudes, productive habits, and useful skills – all important elements in offenders’ rehabilitation”).
[45] McDowell, supra note 6.
[46] Russo, supra note 6.
members. Another suggestion would be to allow these inmates to access these funds on a payment schedule. Allowing inmates to leave incarceration with money for transportation, housing, food, etc., will hopefully decrease recidivism. Properly training inmates can also lead to better rehabilitation and societal integration post incarceration. In theory, the goal of incarceration is rehabilitation and successful reentry of the formerly incarcerated into our society. The lack of proper training fails to give inmates transferable skills upon exiting the system and the current working conditions do nothing further than create modern-day slave labor and a lack of resources for incarcerated workers upon release. Advocacy “is not for no work for incarcerated individuals, but for adequate pay, humane conditions, safe conditions and voluntary work:” the bare minimum.