by Matt Clarke

The American Civil Liberties Union (ACLU) and the Global Human Rights Clinic (GHRC) of the University of Chicago Law School released a comprehensive report on June 15, 2022, detailing the way American prisoners are coerced into providing labor for little or no compensation. The practice is a pervasive and disturbing legacy of the nation’s history of slavery which, the report argues, should be abandoned.

The report draws a line from slavery to the exploitation of prisoners for their labor. The Thirteenth Amendment abolished slavery and involuntary servitude, “except as a punishment for crime.” Many states treated this exception like a mandate, ushering in the next phase of American involuntary servitude — convict leasing.

In the South, convicts were primarily leased for agriculture, but other industries included mining and construction – even turpentine production. In the North, convicts were usually leased to factories. There they were often forced to work 14 to 18 hours a day and subjected to brutal punishment “for not working fast enough, for accidentally damaging equipment, and sometimes for no reason at all,” the report notes.

In the 1890s, the North produced over $30 billion (in today’s dollars) worth of prisoner-made goods annually, forcing over 75% of prisoners to work in factories. This exploitation “fell largely upon impoverished, immigrant, and African American communities who made up the majority of the incarcerated population in the North,” the report notes. In the South, emancipated slaves and their children were simply incarcerated to keep exploiting their labor. “These private employers had unfettered control over unpaid, predominately Black workers and subjected them to brutal punishments such as whipping and branding and, in many cases, worked incarcerated people to death.”

Labor unions opposed convict leasing, not because of its inhumanity, but because it put prison slave labor in direct competition with paid union workers. “By the late 1890s, 25 states capitulated to rising union pressure to scale back incarcerated labor programs.” The solution they came up with: The state become both employer of prisoners and purchaser of the goods and services they provided. Congress adopted a similar system when it established the federal prison system in 1891.

The State-Use System

Forced labor in state prisons expanded as the prison systems expanded. The idea of using work crews of prisoners chained together outside of prison grounds originated in Georgia in the 1890s and spread throughout the South as states phased out convict leasing. These “chain gangs” forced prisoners to labor under brutal conditions to build roads, dig ditches, break rocks, and perform highway maintenance and farm labor. Mounted guards carrying shotguns and whips brutalized prisoners whose efforts were unsatisfactory, or whom they simply did not like. By 1923, every state except Rhode Island had used chain gangs to build roads.

In 1934, Congress authorized the Federal Prison Industries program (now called UNICOR). Under this program, federal prisoners were employed to manufacture goods for government agencies. Many state prison systems adopted similar programs. Union opposition to prison industries programs led to state and federal legislation prohibiting the sale of prison-made goods to private persons and entities. This prohibition has recently been weakened by programs that allow private companies to employ prisoners at low wages to manufacture goods or provide services marketed to private persons and entities.

The report estimates that 791,000 U.S. prisoners work today. That is over 65% of the country’s prisoner population. Unlike their free world counterparts, these prisoners cannot refuse to work, choose their work or negotiate their compensation. They are not covered by workplace safety regulations, unemployment insurance, worker’s compensation, or Social Security.

There are six types of prison labor: support and maintenance of the prison; production of goods and services in state-owned industries; public works; work for private industries; work as a condition of sentencing or in a “work-release” program; and agricultural work. Some of the jobs are both menial and futile — such as being ordered to push a mop around on a floor that has already been cleaned or to dig a hole and fill it in.

Only 2.2% of prisoners nationwide work in farming – more in the South than in the North. Around 7.3% of prisoner workers toil in industries, most owned and operated by the state, but a growing number of private industries use prison labor.

In 1979, Congress amended the 1935 law that made interstate transportation of most prison-made goods a federal crime, in order to allow “prison work pilot projects.” Under the Prison Industry Enhancement Certification Program (PIECP), prisons and private industries could establish joint ventures to manufacture goods using prison labor. It allowed interstate commerce in those goods. Since then, many states have also established private industry prison labor programs, although they are dwarfed by the state-owned prison industries.

The Situation Today

Still, not many prisoner workers – just6.5% – are employed in state-owned industries. Although justified as job-training programs, few teach marketable skills. Instead, they produce items to be used by government agencies such as office furniture and cleaning supplies.

According to the report, “[m]ore than 95 percent of public prisons and nearly 90 percent of private prisons have work programs that employ incarcerated people to support and maintain” prisons. About 80% of surveyed prisoners reported working in these jobs. The most common job types were janitorial (30%) and food preparation (20%).

The primary beneficiary of prison slave labor is the government. Prisoners produce over $2 billion in goods and $9 billion worth of prison support and maintenance services each year, subsidizing their own mass incarceration. Most are paid only pennies an hour. Seven states — Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas — pay prisoners nothing. Even those working in PIECP programs, who must by law be compensated at “prevailing wages,” are actually paid a fraction of prevailing wages after the prison deducts costs of their incarceration and outstanding debt for court costs, fees and child support.

“The United States has a long, problematic history of using incarcerated workers as a source of cheap labor and to subsidize the costs of our bloated prison system,” said Jennifer Turner, a principle human rights researcher at ACLU who was the report’s primary author. “Incarcerated workers are stripped of even the most minimal protections against labor exploitation and abuse. They are paid pennies for their work in often unsafe working conditions even as they produce billions of dollars for states and the federal government. It’s past time we treat incarcerated workers with dignity. If states and the federal government can afford to incarcerate 1.2 million people in prisons, they can afford to pay them.” See: Captive Labor – Exploitation of Incarcerated Workers, ACLU and GRHC (2022).

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