Penal labor in the United States

Penal labor in the United States is explicitly allowed by the 13th Amendment of the U.S. Constitution: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Unconvicted detainees awaiting trial cannot be forced to participate in labor programs in prison as this would violate the Thirteenth Amendment.

Penal labor in the United States underwent many transitions throughout the late 19th and early and mid 20th centuries. Periods of national economic strife and security guided much of these transitions. Legislation such as the Hawes-Cooper Act of 1929 placed limitations on the trade of prison-made goods. Federal establishment of the Federal Prison Industries (FPI) in 1934 revitalized the prison labor system following the Great Depression. Increases in prison labor participation began in 1979 with the formation of the Prison Industry Enhancement Certification Program (PIECP). The PIECP is a federal program first authorized under the Justice System Improvement Act of 1979. Approved by Congress in 1990 for indefinite continuation, the program legalizes the transportation of prison-made goods across state lines and allows prison inmates to earn market wages in private sector jobs that can go towards tax deductions, victim compensation, family support, and room and board.

Firms including those in the technology and food industries are often provided tax incentives to contract prison labor, commonly at below market rates. The Work Opportunity Tax Credit (WOTC) serves as a federal tax credit that grants employers $2,400 for every work-release employed inmate. "Prison in-sourcing" has grown in popularity as an alternative to outsourcing work to countries with lower labor costs. A wide variety of companies such as Whole Foods, McDonald's, Target, IBM, Texas Instruments, Boeing, Nordstrom, Intel, Wal-Mart, Victoria's Secret, Aramark, AT&T, BP, Starbucks, Microsoft, Nike, Honda, Macy's and Sprint and many more actively participated in prison in-sourcing throughout the 1990s and 2000s. After the 2021 storming of the US Capitol, it was noted that FPI would receive priority when the federal government purchases products such as office furniture to replace what was damaged in the riots.

Critics of the prison labor system argue that the portrayal of prison expansion as a means of creating employment opportunity is a particularly harmful element of the prison–industrial complex in the United States. Some believe that reducing the economic drain of prisons at the expense of an incarcerated populace prioritizes personal financial gain over ensuring payment of societal debt or actual rehabilitation of criminals. In 2021, inmates in federal prisons earned between $0.23 to $1.15 per hour, far below minimum wage.

History

Origins

The current state of prison labor in the United States has distinct roots in the slavery-era economy and society. With the passage of the 13th amendment in 1865, slavery was deemed unconstitutional. Involuntary servitude as a punishment for crime whereof the party shall have been duly convicted, was still explicitly allowed.

Prison Labor Post-13th Amendment (1865–1866)

Immediately following the abolition of slavery in the United States (and ratification of the 13th amendment), the slave labor-dependent economy of the South faced widespread poverty and market collapse. Southern lawmakers began to exploit the so-called "loophole" written in the 13th amendment and turned to prison labor as a means of restoring the pre-abolition free labor force. Black Codes were enacted by politicians in the South to maintain white control over former slaves, namely by restricting African Americans’ labor activity. Common codes included vagrancy laws that criminalized African Americans’ lack of employment or permanent residence. Inability to pay fees for vagrancy crimes resulted in imprisonment, during which prisoners labored in the very same wage-free positions held by slaves less than two years prior. Other "crimes" punishable by imprisonment (and subsequent slave labor) as per Black Codes included unlawful assembly, interracial relationships, violation of slave-like labor contracts, possession of firearms, making or selling liquor, selling agricultural produce without written permission from an employer, and practicing any occupation other than servant or farmer without holding a judge-ordered license. Additionally, orphaned minors and minors removed from their homes by the state were apprenticed by courts to employers until the age of 21. Minors apprenticed under Black Codes were authorized to be forced into labor against their will, and apprentice relationships closely resembled those of master and slave in terms of discipline and involuntary labor. By 1866, nearly all southern states had enacted individual sets of Black Codes. The widespread enforcement of Black Code laws effectively used the 13th amendment's exception of penal labor to reinvent the chattel slavery economy and society to comply with federal law.

Prison Labor in the Reconstruction Era (1866–1877)

Between 1866 and 1869, Alabama, Texas, Louisiana, Arkansas, Georgia, Mississippi, and Florida became the first states in the U.S. to lease out convicts. Previously responsible for the housing and feeding of the new prison labor force, the states developed a convict leasing system as a means to rid penitentiaries of the responsibility to care for the incarcerated population. State governments maximized profits by putting the responsibility on the lessee to provide food, clothing, shelter, and medical care for the prisoners. Convict labor strayed from small-scale plantation and share crop harvesting and moved toward work in the private sector. States leased out convicts to private businesses that utilized the low-cost labor to run enterprises such as coal mines, railroads, and logging companies. Private lessees were permitted to use prisoner labor with very little oversight. The result was extremely poor conditions. Inadequacy of necessities like food, water, and shelter, was often exacerbated by unsafe labor practices and inhuman discipline. Nevertheless, the convict lease system prompted the southern economy's return from devastation as the (cheap) labor supply returned to southern capitalism.  

While incarceration rates continued to rise during Reconstruction, feeding the convict lease system, Union occupation in the South and national pressure began to change the laws by which African Americans were arbitrarily imprisoned. By 1868, the last official laws of Black Code were repealed in most states. As Reconstruction lost its vigor, however, the Democratic party recovered and de-stigmatized casual racism in the Union-washed South. This end to the reconstruction era set the stage for future reinvention of Black Code laws. States configured legislation to more precisely target the poor, further criminalizing the vast majority of former slaves who had not yet adapted to a free market or accrued wealth. Mississippi’s "pig law" followed this trend of hyper criminalization and fed the penal labor force simultaneously by tacking on outrageous sentences to violations. The "pig law" classified theft of a farm animal or any property worth $10 or more as grand larceny. Violation carried a sentence of incarceration up to five years. Following enactment of the "pig law," the incarcerated population quadrupled over the following three years.

Hired convict labor

The earliest known law permitting convicts to be paid for their labor traces back to an act passed by New York governor John Jay in 1796. More explicit legislation suggesting that "it may be useful to allow risonersa reasonable portion of the fruits of their labor" was later enacted in 1817 under Daniel D. Tompkins, only to be repealed the following year.

In 1924, the U.S. Secretary of Commerce, Herbert Hoover, held a conference on the "ruinous and unfair competition between prison-made products and free industry and labor" (70 Cong. Rec. S656 (1928)). The eventual legislative response to the committee's report led to federal laws regulating the manufacture, sale and distribution of prison-made products. Congress enacted the Hawes-Cooper Act in 1929, the Ashurst-Sumners Act in 1935 (now known as 18 U.S.C. § 1761(a)), and the Walsh-Healey Act in 1936. Walsh controlled the production of prison-made goods while Ashurst prohibited the distribution of such products in interstate transportation or commerce. Both statutes authorized federal criminal prosecutions for violations of state laws enacted pursuant to the Hawes-Cooper Act. Private companies got involved again in 1979, when Congress passed a law establishing the Prison Industry Enhancement Certification Program which allows employment opportunities for prisoners in some circumstances. PIECP relaxed the restrictions imposed under the Ashurst-Sumners and Walsh-Healey Acts, and allowed for the manufacture, sale and distribution of prisoner-made products across state lines. However, PIECP limited participation in the program to 38 jurisdictions (later increased to 50), and required each to apply to the U.S. Department of Justice for certification.

According to the International Labor Organization, in 2000–2011 wages in American prisons ranged between $0.23 and $1.15 an hour. In California, prisoners earn between $0.30 and $0.95 an hour before deductions.

Over the years, the courts have held inmates may be forced to work and are not protected by the constitution against involuntary servitude. They have also consistently held that inmates have no constitutional right to compensation and that inmates are paid by the "grace of the state." Under the Federal Bureau of Prisons, all
able-bodied sentenced prisoners were required to work, except those who participated full-time in education or other treatment programs or who were considered security risks. Correctional standards promulgated by the American Correctional Association provide that sentenced inmates, who are generally housed in maximum, medium, or minimum security prisons, be required to work and be paid for that work. Some states require, as with Arizona, all able-bodied inmates to work.

Inmates have reported that some private companies, such as Martori Farms, do not check for medical background or age when pulling women for jobs.

Modern prison labor systems

The following list is not comprehensive. All U.S. state prison systems and the federal system have some form of penal labor, although inmates are paid for their labor in most states (usually amounting to less than $1 per hour). As of 2017, Arkansas, Georgia, and Texas did not pay inmates for any work whether inside the prison (such as custodial work and food services) or in state-owned businesses. Additionally, Alabama, Florida, Mississippi, Oklahoma, and South Carolina allowed unpaid labor for at least some jobs.

Mississippi for-profit prison labor

Forced labor exists in many prisons. In Mississippi, Parchman Farm

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