Involuntary Servitude: How Prison Labor is Modern Day Slavery

Involuntary Servitude: How Prison Labor is Modern Day Slavery

Involuntary Servitude: How Prison Labor is Modern Day Slavery

Image by Javad Esmaeili licensed under the Unsplash License.

Note: I have been using the term “incarcerated people” throughout my column (as opposed to “inmates”, “prisoners”, “criminals”, or similar labels). As I use this term frequently in this article, I wanted to clarify my motivation. The term “incarcerated people” emphasizes personhood, with “incarcerated” as a temporary descriptor of a person’s situation. The first step in criminal justice advocacy is to see incarcerated people as people first.

Joseph Lascaze, Manager of the Smart Justice Campaign for the ACLU of New Hampshire, looked forward to his job in the woodworking facility while incarcerated in New Hampshire. He says it helped to relieve the monotony of prison life, and gave him a chance to learn a new skill. Woodworking is not the most common of trades though — the number one job in prison is the job of a barber.

“People spend years cutting hair, becoming amazing barbers,” explains Lascaze. “But the irony is tremendous: once they are released from prison, they cannot become barbers, because it is illegal for felons to receive a barber’s license.”

This irony is a part of what activists call the “prison-industrial complex.” What is the prison-industrial complex? Why do people keep referring to prison labor as “modern day slavery”? What type of labor is performed by incarcerated people? Do they make money for it? And how should incarcerated people be allowed or required to spend their time?

The prison-industrial complex, most simply put, is a term used to describe the relationship between prisons and industry. It is a term encapsulating centuries of governmental and economic benefit from prisons and prison labor at the expense of those incarcerated. Prison abolition activists use the term as a catch-all to describe our system of incarceration. Critical Resistance, an abolition organization, uses the term “to describe the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.” While the term “prison-industrial complex” refers to issues ranging from the construction of new prisons to the exorbitant costs of canteen items, one of most common associations with the term is with prison labor — a form of modern-day slavery.

Though the 13th Amendment to the US Constitution is known as the amendment which abolished slavery, there is an exception: as punishment for a crime of which one is “duly convicted,” slavery and involuntary servitude are permitted. Ratified in 1865, the 13th Amendment paved the way for Jim Crow laws in the South. Legislatures established black codes, strict laws explicitly punishing Black people for petty crimes such as loitering, not carrying proof of employment and more. Violators of these codes could be thrown in prison, and according to the 13th Amendment’s loophole, they could then be required to perform unpaid, harsh labor. Until World War II, this practice of “convict leasing” was common.

The convict leasing system was designed to continue the subjugation of Black people after slavery was outlawed; it was not until this system was implemented that there were more Black people than White people incarcerated in the US, and that has not changed. It is on the back of this system that our system of incarceration has been built.

While convict-leasing as an official practice has ended, the issue of prison labor has not been resolved. There are three primary types of labor performed in prison: in-house prison labor, industry labor, and work-release programs. This article will address the first two, as work-release programs fall more into the categories of alternative sentencing or pre-release options.

In-house prison labor is by far the most common type of prison labor, and typically refers to prison maintenance jobs including kitchen duty, cleaning, or groundskeeping. Workers can be punished, even sent to solitary confinement, for taking a sick day, even in the eight states where in-house labor is unpaid. But being paid is not much. The average low and high rates across the US for in-house labor are 14 and 63 cents per hour, respectively, and that is before wage garnishment, which can account for up to half of one’s earnings (though wage garnishments can arguably go to worthy sources, such as victims’ reparation funds). For a state-by-state breakdown of wages and sources, see this resource from the Prison Policy Initiative.

Not only do prison laborers receive pennies compared to the rest of the workforce, they do not receive any of the benefits of employment either. In employment law, a critical distinction is drawn between an employee and a worker: employees get protections and workers do not. Although current labor laws do not explicitly exclude incarcerated people from the employee category, lawsuits against prisons for labor violations have historically been found in favor of the prison due to the unique relationship between the employer and the “employee.” As of now, labor protections appear out of reach for incarcerated workers.

Slightly different from in-house prison labor, industry labor refers to non-prison-related jobs which incarcerated people can perform, including phone banking, packaging, textile work, etc. It often makes headlines when wildfires rage in California, as there is a prison-firefighter program which puts incarcerated peoples’ lives on the line to fight fires for as little as $1.45 a day — and then does not allow them to become firefighters when they are released. At the federal level, these jobs are regulated through the Prison Industry Enhancement Certification Program — now called UNICOR — and most states have similar state-level organizations. While participating companies are required to pay minimum wage, wage garnishment is practiced in industry jobs as well, even for room and board. In other words, some incarcerated individuals are paying rent on their prison cells.

The PIECP’s mission is “to protect society and reduce crime by preparing inmates with job training and practical work skills for reentry success.” It markets itself as a “thriving corrections program that provides marketable skills and qualifications for inmates to succeed as productive citizens in our communities.” However, even the Bureau of Justice admits that incarcerated people are not the “first beneficiaries” of PIECP income, and post-release, jobs are not guaranteed. Some companies will use prison labor, and then refuse to hire the same person who worked for them while incarcerated as part of a company policy not to hire those with criminal records.

While the fewest number of incarcerated people work industry jobs, their labor still produces billions of dollars for the economy, providing a strong incentive for companies to continue to support prison proliferation as opposed to criminal justice reform. And these are influential organizations too — companies such as Pillsbury and Campbell Soup source from PIECP participants. You in fact, may be — and Harvard certainly is — contributing to the prison industrial complex by purchasing or investing in companies which operate or contract with prisons. Do not take this as a personal attack — it just goes to show how deeply entrenched our economic system is in prison labor (though if you are interested in how your investments may be contributing to the PIC, check out this tool).

There are some — notably formerly incarcerated individuals themselves — who argue that the issue of prison labor is overplayed or misplaced in social justice activism. Some argue that the real problem in prison is boredom and not overwork, and argue that the solution is more diverse job training, not less labor. Others argue that labor brings meaning to life, and anti-prison-labor activists deter companies from contracting fairly with prisons — which would be a good thing — for fear of criticism for contracting with prisons at all. There seems, however, to be consensus that the status quo is unfair.

This consensus hovers around two main issues: the conditions of prison labor and the impact of the prison labor industry on mass incarceration. Even if one were to argue that incarcerated people do not deserve to work in the same conditions as everyday citizens, one would still be faced with the fact that allowing the proliferation of prison labor incentivizes the mass incarceration of largely black and brown folks to their detriment, and to the benefit of big businesses. If the goal of prison labor — as PIECP states — is to contribute to the rehabilitation of incarcerated people to facilitate their reintegration into society, then I believe a few things need to change:

  1. Incarcerated people must be afforded the same labor rights as every employee, especially the right to report unfair/discriminatory labor practices without fear of retaliation.
  2. Incarcerated people should be paid commensurate with their job difficulty and the prison economy.
  3. Incarcerated people must not be forced or otherwise coerced into dangerous work; if they choose to engage in such work, feedback and safety protocols should be robust.
  4. No company should be able to benefit from prison labor if they are unwilling to hire formerly incarcerated individuals; there should be well-established pathways from incarcerated employment to employment after re-entry.
  5. Past incarceration status should be added to the list of protected characteristics for employment.

In summary, in a system modeled off of slavery and under threat of punishment or lack of funds for necessities, most incarcerated individuals work full days, making less than $1 per hour with no benefits and with no guarantee of post-release employment. While one may argue that incarcerated people should be satisfied to have any work or income at all, the conditions of their “employment” are not livable.

Joseph Lascaze does not like telling people he was formerly incarcerated, but he says he does so both for transparency and to initiate a “cultural shift.” While campaigns like Ban the Box — a push to remove the criminal record checkbox from job applications — are popular, Lascaze thinks that what is ultimately needed is for society to view people with criminal records first and foremost as people. I can only agree.