Washington DOC Restarts Private Industry Prison Jobs Following State Constitutional Amendment

by John E. Dannenberg

After eliminating private industry prison work programs in response to a Washington State Supreme Court ruling declaring the underlying statute unconstitutional (see related article on Talon Industries v. Washington DOC in this issue), the Washington Dept. of Corrections (WDOC) reversed course on August 8, 2008 and began inviting private companies to hire prisoners at prevailing wages.

The about-face came after Washington voters approved a constitutional amendment specifically permitting such prison work programs for the intended purpose of reducing recidivism by better preparing offenders for post-release employment. These “Class I” jobs were distinguishable from internal prison industry Class II jobs, which are limited to filling state agency consumption needs – such as eyeglasses, furniture and food for prisoners and welfare recipients.

The WDOC’s earlier private industry prison work program had employed about 300 prisoners. A lawsuit brought by an industry association complained that those were 300 jobs not available to non-incarcerated workers. Moreover, the offer of free prison facility work space with reduced-rate utilities was an unfair advantage against companies that didn’t use prison labor.

Following the 2004 demise of the private industry prison work program on state constitutional grounds (See: Washington Water Jet Workers Association v. Yarbrough, 151 Wash.2d 470, 90 P.3d 42 (Wash. 2004) [PLN, Dec. 2004, p.22]), lawmakers and voters were asked to weigh the benefits of meaningful job training for prisoners – which would help them find post-release employment – against industry’s hue and cry of “unfair competition.” Ignoring the fact that most private industry prisoner employees are lifers unlikely to ever be released from prison.

The core difference to overcome the prior constitutional infirmity of the WDOC’s private industry prison work program was that the statutory purpose of the new program would be to benefit the state. Accordingly, it was carefully crafted to include several key provisions.

First, wages would range from the state minimum wage of $8.07/hour to $12/hour, and would not undercut industry wage standards. Second, a portion of the prisoners’ earnings would be paid to the state to offset the cost of their incarceration. Third, the job skills learned would be real-world skills that would meaningfully aid in the most challenging phase of a parolee’s life – the period immediately following release from prison.

The process began with Senate Joint Resolution 8212, which passed the Senate (with a 49-0 vote) on March 12, 2007 and the House (with a 83-15 vote) on April 10, 2007.
Specifically, Article II, section 29 of the state constitution was amended to provide for “the working of inmates for the benefit of the state, including the working of inmates in state?run inmate labor programs. Inmate labor programs provided by statute that are operated and managed, in total or part, by any profit or nonprofit entities shall be operated so that the programs do not unfairly compete with Washington businesses as determined by law.” The measure garnered 60% voter approval in a December 21, 2007 referendum election, following widespread support in local newspaper editorials.

Not everyone agreed with this use of prison labor. In an October 20, 2007 opinion piece, the founder of JusticeWorks!, Lea Zengage, concluded that because prisons house disproportionately greater numbers of impoverished blacks, initiatives such as WDOC’s private industry program would have the perverse effect of perpetuating the “prison slave plantation” concept by keeping blacks employed within prison but not outside of prisons. “The system is set up to cause people to fail,” she observed.

PLN has reported extensively on the issue of prison slave labor in Washington state, usually breaking the stories for other media. Among the companies that have used prison slave labor in Washington state are such notables as: Eddie Bauer, Kelly Hanson, Boeing, Microsoft, Nintendo, Starbucks, Planet Hollywood and various banks. In 1995 PLN broke the story that Republican congressional candidate Jack Metcalf had used prisoners employed by the Washington Marketing Group at the Washington State Reformatory to call voters prior to the 1994 election and perform a mock voter survey telling likely voters that he supported the death penalty and lower taxes and was “tough on crime”. Metcalf won the election by 600 votes and went on to serve three terms in congress where, true to his word, he voted in favor of every anti prisoner and defendant measure to come through the halls of congress.

Washington is not the only state conjoining the prison labor force with private industry. Nationally about 5,300 prisoners are employed in such ventures, according to the National Correctional Industries Association (NCIA), an interest group that represents prison industry programs and administers the Training and Technical Assistance Project of the Prison Industry Enhancement Certification Program (PIE), 18 U.S.C. § 1761(c).

Established in 1979, PIE programs now involve over 100 companies operating in 42 jurisdictions that generate gross wages for prisoner workers of $10.8 million annually ($4 million in net wages after deductions for room and board, family support, taxes and victim restitution). The benefits of PIE programs for businesses include lower health care costs, reduced employee turnover expenses, no vacation time, and lower payroll taxes. Offsetting this is the specter of down time due to prison lockdowns, searches and other security needs.

Sheila A. Bedy, director of the Justice Policy Institute research foundation in Washington, D.C., criticizes prison labor as a throwback to the Reconstruction Era because it “creates a market incentive to lock people up,” which “undermines the very purpose of our criminal justice system.” But this critique must be balanced against the propaganda the supporters of prison slavery claim as the positive attributes of giving prisoners the ability to pay their restitution, fines and child support while saving money for their release and learning marketable job skills. The lie to these claims are that the more money prisoners are paid, the more they can pay for these things yet every state to have a PIE program routinely violates the provision that prisoners be paid the prevailing wage for their labor.

The Glove Corp. in Heber Springs, Arkansas gives prison labor a big thumbs up. Prior to using prisoners from the Pine Bluff Correctional Facility, Glove Corp. struggled to keep 30 free world workers employed to fill orders for firefighting gloves. Turnover losses had amounted to $156,000 in eight months. Now employing twenty prisoners, the firm’s production is stable. “If it weren’t for the prisoners, we wouldn’t have a company right now,” said Tony Moore, Glove Corp.’s General Manager.

Array Corp. in Portland, Oregon reported a tougher experience with its PIE-sponsored jeans manufacturing plant at the Eastern Oregon Correctional Institution. After unsuccessfully trying to correct loss factors that the company blamed on excessive inspections by prison guards, Array dropped its 11-year-old Prison Blues jeans operation in July 2008.

Nor is the specter of unfair competition resulting from prison labor a theoretical concept – as Lufkin Industries discovered when the company was forced to shut down its trailer manufacturing division in January 2008. The closure was due to a competitor that employed prisoners in a PIE program at the Michaels Unit in Tennessee Colony, Texas. Luftkin had to displace 150 free world workers as a result. [See: PLN, Nov. 2008, p.12].

But some prison industry programs have good long-term prospects because the prisoners employed in those programs have no better choice. Ronita Bell, 30, serving life without parole in Arkansas, crimps and welds cable assemblies for Actronix at a prison in Newport. While she won’t be able to put those job skills to use elsewhere since she will likely never be released, she feels good about making parts that will ultimately be used in MRI units, CT scanners and X-ray machines.

“I love being part of building something in a medical field,” she said. “I know that it’s going to be a machine that could possibly save someone’s life.” Which, presumably, is a productive way to make use of her life sentence.

Sources: Associated Press, Tacoma News Tribune, WA Senate Joint Resolution 8212, Seattle Times, Union-Bulletin, Spokane Spokesman-Review, www.forbes.com, www.nationalcia.org

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