Tennessee, Alabama, Oregon, and Vermont voted in the November elections to prohibit slavery and involuntary servitude as punishment for crime, while Louisiana did not.
The votes had to do with the hundreds of thousands of incarcerated Americans forced to work for pennies an hour – and sometimes no wage at all. The four approved initiatives won’t bring about any immediate changes in the states’ prisons, but they could remove some barriers to legal challenges over the brutal treatment of prisoners.
There are reasons to doubt much change will come from the votes. Colorado voters made slavery and involuntary servitude unconstitutional in 2018, but the state’s court of appeals just recently decided that the people did not mean to abolish the state Department of Corrections’ prison labor program.
There are also rules in place from the Prison Litigation Reform Act of 1996 (thanks, Bill!) that make it nearly impossible for prisoners to enforce what little rights they have in court. The law requires that incarcerated people exhaust purposefully burdensome and opaque administrative avenues within correctional facilities before they can bring a suit in court As expected, this leads to retaliation from correctional officers.
One would be tempted to say the system is “broken,” but that ignores the fact it’s operating as it’s designed to – with ever-increasing efficiency.
Forced prison labor allows the system to grow without becoming too much of a strain on tax dollars, and it helps private companies maximize profits.
The ACLU released a long report in June, Captive Labor: Exploitation of Incarcerated Workers, that’s well worth reading in full for more details into the banality of American evil.
Of the more than 1.2 million people in state and federal prisons, 76 percent are required to work or face additional punishment, including solitary confinement, loss of opportunity to reduce their sentence, loss of family visitation rights, and the inability to pay for basic necessities like bath soap.
Incarcerated workers earn little pay that is often garnished and in seven states they are paid nothing at all for most jobs. Nationally, incarcerated workers produce more than $2 billion a year in goods and commodities and over $9 billion a year in services for the maintenance of the prisons where they are warehoused.
The ACLU research found that the average minimum hourly wage for non-industry work is 13 cents with an average maximum of 52 cents. And being forced to work for basically nothing doesn’t just take a toll on the prisoner. From the report:
Because incarcerated workers’ wages are so low, families already struggling from the loss of income when a family member is incarcerated and removed from household wage earning must step in to financially support an incarcerated loved one. Families with an incarcerated loved one, many of whom are impoverished themselves, spend an estimated $2.9 billion a year on commissary accounts and phone calls. Over half of these families are forced to go into debt to afford the costs of a relative’s conviction and subsequent incarceration.
Prisoners also work for private companies through the Prison Industry Enhancement Certification Program. The ACLU estimated that roughly 5,000 prisoners work for private companies through the program, although the number could be much higher. The ACLU filed FOIA requests with the federal government and all 50 states, but the Federal Bureau of Prisons and all but eight states refused to provide data.
Of course the prisoners have no workplace protections, face dangerous conditions with little or no training, and sexual favors are often demanded for better work positions. From the report:
Yet despite overwhelming evidence of exploitation and negligence in prisons, little has been done to protect these workers. The vast majority of incarcerated workers are excluded from federal statutes such as the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and the National Labor Relations Act, that provide for minimum wage, overtime pay, protection from discrimination, and the right to collectively bargain for improved work conditions. Incarcerated workers also are excluded from the right to earn into the social safety net afforded to other workers. Because the work performed by incarcerated workers is excluded as covered employment eligible for Social Security, Medicare, disability insurance, and unemployment insurance benefits, the time people spend working while in prison generally does not contribute toward earning future benefits.
The US prison system violates nearly all of the articles of fundamental ILO Conventions on the Abolition of Forced Labour, of which it is a signatory. Predictably, prisoners are frequently injured and sometimes killed on the job. A few examples from the ACLU report:
During the early days of the COVID-19 pandemic incarcerated workers were widely used to meet the demands of protective equipment production early in the pandemic. They manufactured hand sanitizer, masks, medical gowns, face shields, and other personal protective equipment that they were then prohibited from using to protect themselves. They also worked in morgues, transported dead bodies, dug mass graves, built coffins, washed soiled hospital laundry, disinfected supplies, and cleaned medical units. The ACLU reports:
Incarcerated workers at Great Meadow Correctional Facility in New York were working around the clock in eight- hour shifts to bottle 100,000 gallons of hand sanitizer every week for 65 cents an hour …
Workers in Texas were not paid at all for their work manufacturing face masks and medical gowns for first responders. In Bastrop, Louisiana prisoners were forced to work at a DG Foods poultry processing plant so it didn’t have to temporarily halt operations. If the prisoners refused, their parole eligibility dates were pushed.
A majority of the largest, single-site outbreaks since the beginning of the pandemic have been in jails and prisons causing over 3,000 deaths, although that number is likely undercounted.
The primary beneficiaries of the labor of incarcerated workers are federal, state, and local governments. They offset budget shortfalls by forcing incarcerated laborers to work to maintain the very prisons that confine them. According to the report:
The true costs to operate our prisons are much higher. Incarcerated workers’ labor partially offsets the staggering costs of our country’s bloated prison system. The cost-savings of unpaid and grossly underpaid prison maintenance labor and the revenues from commodities and services generated by imprisoned laborers prevent policy makers and the public from reckoning with the true fiscal costs of mass incarceration.
The current US Vice President Kamala Harris succinctly argued this point when as California attorney general she fought against sentence reductions. In a September 2014 filing in the case, signed by Deputy Attorney General Patrick McKinney but under Harris’ name, the state argued, “Extending 2-for-1 credits to all minimum custody inmates at this time would severely impact fire camp participation—a dangerous outcome while California is in the middle of a difficult fire season and severe drought.”
Many states also require all public institutions and state agencies to buy manufactured goods from prison industries. In fiscal year 2020, Illinois’ correctional industries program sold over $33.5 million worth of goods and services from incarcerated workers to its own state agencies, state universities, and local governments, while California’s correctional industries program sold over $191 million in manufactured goods, services, and agricultural products produced by incarcerated workers in fiscal year 2020–21.
And it’s not just manufacturing. Prisoners do data entry, repair state-owned vehicles, and wash laundry for public hospitals and universities. In Oregon incarcerated workers staff the state’s DMV call center for $4 to $6 per day.
Organized free labor fought back against prison labor in the late 19th century and early 20th and again in the 1920s and 30s, which led to curbs on this form of modern slavery. The reforms were short-lived, however, and starting in the 1970s, the US began to ramp up prison labor once again.
Private companies are now increasingly benefitting. The Federal Prison Industries (UNICOR) program operates in seven areas: metals, wires and plastics, vehicular repair/manufacturing, data and document conversion services, electronics, woods, and fabrics/materials. Again from the ACLU report:
Wages for these various manufacturing jobs or services range from $0.23 to $1.15 per hour. UNICOR explicitly advertises to private companies, telling them that they can benefit from the “Made in the USA marketing advantage” while eliminating the “waste and instability caused by offshore supply chain interruptions and unstable labor.” As for services, UNICOR maintains call centers that it outsources to private companies. The program’s website urges these corporations to “imagine…all the benefits of domestic outsourcing at offshore prices. It’s the best kept secret in outsourcing!”
And business is booming. Utah Correction Industries sells goods and services to almost 1,000 private companies, including 3M Company, Allstate Insurance Company, American Apparel, American Express, Apple Inc., AT&T Mobility, Costco, Enterprise Rent- a-Car, FedEx, Frito Lay Inc., Fujifilm North America, Hertz Corporation, Hewlett-Packard, Hickory Farms, Infiniti Motor Company, Little Caesars Enterprises, Lowe’s, KFC, OfficeMax, Pepsi-Co, Procter & Gamble, Sara Lee Corporation, T-Mobile, Verizon, and Xerox Corporation.
Again, the ACLU researchers only received data from eight states, so it is conceivable that the majority of products that consumers buy has some affiliation with prison labor. The conglomerate Dairy Farmers of America that markets 30 percent of the milk produced in the US uses prison labor. So does Leprino Foods Company, which supplies mozzarella to Domino’s, Papa John’s, and Pizza Hut.
Companies that don’t use prison labor are put at a major disadvantage. From the ACLU report:
Direct Trailer and Equipment Company, a Texas-based manufacturer of flatbed trucks, used this to their advantage to undercut their local competitors, eventually driving competitor Lufkin Industries into bankruptcy. A media report in 2010 concluded that Direct Trailer’s use of incarcerated labor allowed it to avoid paying full wages or employee benefits, resulting in an artificially cheap product.
And the companies and prisons are getting, how should we say, more “innovative.” Arizona Correctional Industries has a private labor contract program that allows companies in the state to directly employ prisoners outside of the Prison Industry Enhancement Certification Program. Two of the largest beneficiaries are Hickman’s Egg Ranch / Hickman’s Family Farms, the fourth-largest US egg producer, and Taylor Farms, which provides salads and vegetables to some of the country’s largest fast food and grocery chains, including Chipotle, Costco, Kroger, McDonald’s, Pizza Hut, Ralphs, Safeway, Subway, Target, Walmart, and Whole Foods Market.
No wonder there’s been such a push across the country to lock up homeless people, private prison companies keep upping their bribes to elected officials, and stories of corrupt judges keep popping up and are likely only the tip of the iceberg.
The US Inflation Reduction Act has been getting a lot of attention for its subsidies that could be used to lure European industry to American shores, but what about prison labor?
The European Union would seem to be hamstrung by its rules that “the pursuit of financial profit must not be prioritised over the interests of people in prison.” The EU instead largely relies on a system based on dignity and rehabilitation.
The US, without a hint of irony, last year enacted a ban on products made from alleged forced labor in Xinjiang, China. Following the US lead, the EU is working on its own ban. The problem, as NC reader Mikel recently pointed out in comments, is this would effectively end most trade with the US.
Of course there’s no plan for Brussels to direct the measure at Washington despite the US trying to poach its companies. Too bad. It’s going to be tough for European industry to turn down a sales pitch that includes cheap energy, subsidies, and slave labor.