by Soleil Ozols
“Neither slavery, nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist in the United States, or any other place subject to their jurisdiction.”[1]
The exception for slavery and involuntary servitude for inmates in the Thirteenth Amendment to the United States Constitution redacts integral Constitutional rights from inmates. The few retained rights include their basic First Amendment rights, such as free speech and religion, protection against any form of cruel and unusual punishment,[2] as well as rights regarding disabled accommodations and the right to medical care.[3] One right that is lost is the inmate’s labor rights, such as the right to minimum wage and worker’s compensation. The lack of labor rights aids in the use of prisoners as a cheap and easily accessible labor force with very little regulations regarding the treatment of those working inmates is rarely considered. The Thirteenth Amendment is credited for legally outlawing slavery, but the simple exception for criminals allows a loophole for prisoners to be legally forced into involuntary servitude. Although it is not reasonable that inmates should expect to receive every right they had before their conviction, the exception for involuntary servitude, granted by the Thirteenth Amendment, aids in the formation of a modern-day slavery and can ultimately lead, and historically has led, to the violation of an inmate’s protection against cruel and unusual punishment. As a result of their redacted rights, inmates forced into unpaid labor lack protection of their human rights, and their work is used to benefit the authority of for-profit prisons.
Prison labor in the United States is not a new issue, and it reaches as far back as the Reconstruction Era, where states began to lease out convicts to private and public organizations. The leasing of prisoners began when slavery was outlawed in the 1860s, due to the private industries’ need for cheap labor. Prisons sought to remedy this issue by loaning out their inmates for profit. The tactic was so successful that convicts are still hired for a short amount of time to private corporations and public organizations. The government’s justification for the leasing of convicts was that states did not have the finances to keep inmates within the confines of prison facilities, so the most practical solution was to use convicts as cheap labor.[4] Today, there are new laws to prevent the overcrowding of prisons, which was a partial drive for convict leading in the late 1800s to the mid-1900s, but the reason for relying on inmates as a labor source is very similar: inmates are a cost-effective labor source that require little-to-no pay and are not as lawfully protected as non-convicted Americans. The leasing of convicts was beneficial to prisons, as well as to the local planters or industrialists (who would pay for the laborers, as well as to house and feed them). Companies would receive cheap labor with minimal housing and food costs, and prisons would receive a small rate for the labor, all at the expense of the well-being of the convict laborers. This was due to the fact that employers would have no incentive to treat the laborers well, since no investment was made in procuring the laborer, unlike the investment that came with owning slaves. With no incentive to treat the convict laborers well, the treatment of these workers would get to the point of being a type of cruel and unusual punishment, as convicts were treated with the severity that slaves were treated with not long before. Eventually the housing and feeding of convict laborers became too expensive for companies. This resulted in many southern states to stop leasing to private companies and instead putting the convict laborers to work on public projects in chain gangs. The Constitutional exception for those convicted legally permitted these practices, forming a new kind of slavery, where inmates are forced to work by law, and noncompliance could lead to punishments as cruel as solitary confinement. Even though inmates are no longer fully leased into private work fields by prisons, the abuse of the public sector to use inmate labor is still prevalent. This is especially true due to the fact that inmates are not covered by minimum wage laws, nor can they unionize, nor are they covered by workers’ compensation. This makes them an ideal workforce to the public and private sectors. While this policy has changed in modern days, the practice is still deeply rooted from a need for slave labor.
Currently, prisoners are not forced to take particular jobs that could be dangerous or grueling. However, prisoners are forced to work while in prison, unless they are medically designated to be unfit for work. Regardless of requirements, the prison environment is inherently coercive and plays a role in persuading inmates to take higher-risk jobs. Instead of hiring from a workforce outside of a prison, private companies hire inmates for the sole reason that it is much cheaper to not pay for labor or to pay the labor less than two dollars an hour for work that an inmate can accomplish. Prisoners are used regardless of whether it may put someone’s life in danger and they are scarcely protected in these work environments.
Not only are there the inherent dangers that come with any job, but there are also long-term effects that many inmates may not be informed of when signing up to take a job. In 2017, two inmates lost their lives while fighting a forest fire in California.[5] While the other inmates that fought those forest fires were untouched by the direct effects that fighting fires entail, they have higher chances of developing cancer, respiratory diseases and other illnesses later on due to the negative effects of smoke inhalation. Additionally, there were cases of inmate workers working on the front lines in shifts of up to 72 hours straight to contain the fires. If any non-incarcerated worker was on shift for 72 hours, the employer would receive drastic repercussions, and yet there are instances of inmates working for 72 hours in a very dangerous environment and not a single concern was raised. For those who lost their lives or will be impacted by the fires later on, no workers’ compensation may prevent them from being able to work, or afford the treatment for consequential diseases later on. All the while, states like California are gaining millions for the work of convict laborers. Not only are states saving money, but they are making money directly from the manpower of their inmates. Through the selling of inmate-made products (everything from mattresses to road signs), the Bureau of Prisons’ program, Federal Prison Industries, together earned $500 million in sales during the 2016 fiscal year.[6] Of California’s wildfire-fighting force, about one-third is made up of inmates, which averages to about 10 million hours of labor each year.[7] This system has the potential to become dangerous as corners are cut for the sake of increasing profits. In order to save money, prisons have conserved in staffing, faculty maintenance, the reduction of training, and even cut the quality of healthcare. From the 1990s to 2000s, overcrowding in prisons became such an issue that it compromised medical services for prisoners and led to about one preventable death per week.[8] Even in 2016, there were strikes led by the Incarcerated Workers Organizing Committee to capture the attention of the public that prisoners are still experiencing a tremendous amount of abuse that coincide with the slave-like conditions in prisons and that this issue is not going away without proactive action. Prisoners are already stripped of so many basic rights, and do not deserve to die in prison because of something out of their control. Prisoners are in a unique position in which they are a short hire but they are not legally protected, as non-incarcerated workers would be. If an inmate were to be hurt or killed, there is no workers’ compensation and the nearly nonexistent wages they do earn can be seized by the prison. The accessibility of prison labor saves states millions of dollars, which puts the law on the side of corporations rather than people. Corporate lobbyists have had their share of influencing in issues regarding prison labor, specifically in 1979, when lobbyists were pushing for Congress to approve of the Prison Industry Enhancement Certification Program which permitted U.S. companies to use prison labor. The Prison Industry Enhancement Certification Program was sold as an employment program to help inmates repay their debts to society, but at its core this program allows the private sector to use prison labor and to take up to 80% of the pay of each prison laborer for a series of deductions (at the discretion of the company).[9] Ultimately, the manipulation of the current system for cheap prison labor is a very profitable industry for private companies, public organizations and states.
There are many sensible reasons as to why the current system for inmates to participate in jobs has the potential to be beneficial, as the recidivism rates statistically decrease when inmates find a job out of jail that uses skills that were acquired through a prison work program. Work programs allow inmates the opportunity to acquire a new skill, or to utilize a previously known skill, all the while making a very small wage for their work, whether it be inside or outside the prison with public or private organizations. The hope for prison work reform programs is that the ability to learn a small part of a trade may help them to find a job once they get out of prison. According to research by the Bureau of Prisons program, UNICOR, 14% of inmates are more likely to receive employment after release from prison in comparison to those who did not go through the UNICOR program.[10] If done right, other work programs have statistically similar results, but work programs have some improvements to be made to continue to lower an inmate’s chance for recidivism. For an inmate, the ability to get out of prison for a couple hours to do work (like cleaning forests of dead underbrush or work as a customer service agent), allows for a change of pace in the bleak existence of prison life, and it gives them a sense of humanity that prisons can be devoid of. The complete elimination of the work system in prisons is not necessary because of the many benefits that a job can provide for inmates. However, as workers, prisoners should be entitled to protection from those that may want to take advantage of the cheap labor that prisons provide. Through UNICOR, private companies are also able to use prison labor to keep jobs in America, rather than outsource overseas to private international companies. In this case, employers and inmates benefit since corporations are able to have their customer service remain in the United States, but at cheaper international prices. There is no need to completely eliminate work programs, but the system requires reform.
By allowing for involuntary servitude in the Thirteenth Amendment, the U.S. Constitution is giving way for a system that takes advantage of those convicted of crimes. With such an inexpensive labor force and a very profitable system, there is no reason for lawmakers to desire to take action against the amount of people that are incarcerated annually. Efforts to give prison laborers rights has been attempted, but such efforts were unsuccessful. In 2008, the issue of prison labor wage rights was brought before the United States District Court for the Northern District of California. Plaintiffs Tony Serra et al. sued the director of the Bureau of Prisons under the claim that the director was in violation of the Fifth and Thirteenth Amendment to the United States Constitution due to the under-compensation of prisoners for their labor.[11] Primarily, the district court dismissed the action, stating that neither the Fifth nor the Thirteenth Amendment granted rights to a particular level of compensation for the inmates. The plaintiffs then appealed the case on the basis of a violation of the Due Process Clause of the Fourteenth Amendment under the allegation that the Plaintiffs were denied equitable pay without due process. The court of appeals held the ruling of the district court, but ultimately ruled against the claim of the Plaintiffs, stating that forced labor, “as punishment for a crime whereof the party shall have been duly convicted,” gives a prisoner no basis for asserting a violation of the Due Process Clause solely on the fact that inmates are made to work for low pay as a punishment for a crime of which they were lawfully convicted.[12] Regardless of the fact that during prosecution the punishment of each inmate is individually decided during the court proceedings, prisoners are able to be continually punished for their crime through forced tasks during the time that they are serving their sentence. Essentially, the violation of the Double Jeopardy Clause of the Fifth Amendment is much more probable when prisons are able to enforce any punishment on an inmate with the justification that it as an additional punishment for the crime of which they were lawfully convicted. The Double Jeopardy Clause prevents the repetitive punishment for one crime and yet inmates are subjected to multiple different punishments in prison. Although the Double Jeopardy Clause does not disallow every sanction an inmate may face, it is more important when the punishments include laborious manual labor or the confiscation of earned pay. However, the endorsement of prisons to punish the inmates for their crimes through low pay is an additional punishment to their primary conviction, consequently violating the Double Jeopardy Clause. This court decision gives way for prisons and companies that use prison labor to treat prisoners however they would like with the justification that it is a punishment for the crime of which that inmate is convicted of, regardless that the prisoner is already paying for their crime through the sentence that has been given to them by the judge and jury that convicted them. This is yet another way in which the prison system is able to take advantage of prisoners considering that the justification that a punishment is acceptable because it is part of a retribution for the convicted crime can allow for a multitude of prisoner abuses in the name of the law.
Regardless of the lack of incentive for legislative protection of prisoners, they deserve equal rights. There are specific steps that the government must be pressured into implementing. Primarily, a minimum wage law should be established in prisons. Although there are the rare jobs that pay up to two dollars an hour, there are many prison workers that receive no money for their work (like in Georgia, Alabama and Arkansas).[13] In prison, money can be used for a multitude of things, such as using the prison phone, where states can take in $4.87 for a 15-minute phone call (in Connecticut).[14] Nonetheless, states are beginning to push initiatives to make phone calls free for people who are incarcerated, such as Connecticut’s new bill, H.B. No 6714.[15] High call prices are just one example of why money is important in prison. On average, an inmate worker would make between 14 to 63 cents per hour for regular prison jobs; the rate for jobs in state-owned businesses range from 33 cents to $1.41 per hour.[16] A $1.41 an hour wage is hard to come by, with only 6% of inmates earning these increased wages. As if the wage wasn’t low enough, there are fees and other ways that prisons take the hard-earned money of the inmates. In New Mexico, deductions from 15-50% of each paycheck is taken for a Crime Victims Reparations Fund and discharge money, with the funds being at the hand of the Superintendent and any inmate’s request of that money in the savings account is evaluated at the discretion of the Superintendent.[17] By leaving most of the handling of the money at the discretion of the Superintendent, money may not reach inmates at all. In other cases, there are states that take the inmate’s money to put it into a savings account to pay for expenses of the inmate after release, but there are many ways for a prison to take substantial amounts of the penal earnings of the inmates that may cover court expenses or in-prison expenses.
There are multiple possible solutions to the issue surrounding the injustice that prison inmates experience. The accessibility of prison labor is a convicting incentive to rely on prison labor, rather than hire non-incarcerated workers, due to the lack of protections that inmates have. As human beings, inmates deserve to have more basic working rights that aid in the prevention of workplace exploitation. For these reasons, there should be no exception for inmates in the Thirteenth Amendment because of the historical repetition of exploitation among inmate workers and how it can lead to a modern day form of slavery, where people are used as a mere source of cheap, or free, labor by those willing to manipulate the system to their advantage. The exception for prisoners in the Thirteenth Amendment poses an issue that thousands of convicts are dealing with every year. By allowing an exception for involuntary servitude for inmates, a culture of dependency is created since a significant size of the workforce for many public sectors and some private sectors are manned by inmate workers.
[1] U.S. Const. art. 13, § 1
[2] Stephanie Jurkowski, Prisoners’ rights, LII, https://www.law.cornell.edu/wex/prisoners%27_rights (last updated June 2017).
[3] Celina Fang, The California Inmates Fighting The Wine Country Wildfires, THE MARSHALL PROJECT, (Oct. 23, 2017, 10:01 P.M.), https://www.themarshallproject.org/2017/10/23/the-california-inmates-fighting-the-wine-country-wildfires.
[4] [4] The Convict Lease System is Real, The Foghorn: University of San Francisco, December 4, 2013 Wednesday, available at https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:5B09-P221-JBSN-314K-00000-00&context=1516831.
[5] David Fathi, Prisoners Are Getting Paid $1.45 a Day to Fight the California Wildfires, AMERICAN CIVIL LIBERTIES UNION, (Nov. 15, 2018), 1:45 P.M., https://www.aclu.org/blog/prisoners-rights/prisoners-are-getting-paid-145-day-fight-california-wildfires.
[6] UNICOR, Fiscal Year 2016 Annual Management Report, FEDERAL PRISON INDUSTRIES, INC., 5-6, UNICOR/Federal Prison Industries, Inc (2016).
[7] Annika Neklason, California Is Running Out of Inmates to Fight Its Fires, Atlantic Online, December 7, 2017 Thursday, available at https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:5R8J-1G61-DYY9-J1B6-00000-00&context=1516831.
[8] Annika Neklason, California Is Running Out of Inmates to Fight Its Fires, Atlantic Online, December 7, 2017 Thursday, available at https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:5R8J-1G61-DYY9-J1B6-00000-00&context=1516831.
[9] U.S. Dept. of Just., OJP(BJA)-1213: Prison Industry Enhancement Certification Program (2018).
[10] UNICOR Business Development, Bringing Jobs Home; Investing in America, UNICOR/FEDERAL PRISON INDUSTRIES INC., https://www.unicor.gov/publications/corporate/CATC6300_C.pdf (last visited June 14, 2019).
[11] Serra v. Lappin, 2008 U.S. Dist. LEXIS 111858, 2008 WL 929525 (United States District Court for the Northern District of California April 3, 2008, Filed), available at https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:7X8F-M440-YB0M-N004-00000-00&context=1516831.
[12] Serra v. Lappin, 2008 U.S. Dist. LEXIS 111858, 2008 WL 929525 (United States District Court for the Northern District of California April 3, 2008, Filed), available at https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:7X8F-M440-YB0M-N004-00000-00&context=1516831.
[13] Derek Gilna, Report: How Private Prison Companies Cut Corners to Generate Profit, Prison Legal News, 42 (Aug. 2, 2016) https://www.prisonlegalnews.org/news/2016/aug/2/report-how-private-prison-companies-cut-corners-generate-profit/.
[14] Clint Smith, While Prisoners Struggle to Afford Calls to Their Families, States Are Making a Profit, TIME, May 24, 2019, https://time.com/5595475/prison-phone-calls-connecticut-law/.
[15] H.R. 6714, 1st Sess., (Conn. 2019).
[15] H.R. 6714, 1st Sess., (Conn. 2019).
[16] Derek Gilna, Report: How Private Prison Companies Cut Corners to Generate Profit, Prison Legal News, 42 (Aug. 2, 2016) https://www.prisonlegalnews.org/news/2016/aug/2/report-how-private-prison-companies-cut-corners-generate-profit/.
[17] Mass Dept. of Corr., 103 CMR 405.00: Inmate Funds (2017).