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Analysis

Covid-19 Highlights the Need for Prison Labor Reform

More than a dozen states are relying on prison labor to make supplies related to fighting the spread of coronavirus.

April 17, 2020
prison tower
Giles Clarke/Getty

For decades, pris­on­ers in Amer­ican correc­tional facil­it­ies have worked for no wages or mere pennies an hour. As the United States attempts to reduce trans­mis­sion of Covid-19, more than a dozen states are now rely­ing on this captive labor force to manu­fac­ture personal protect­ive equip­ment badly needed by health­care work­ers and other front­line respon­ders.

Pris­on­ers in Missouri are currently earn­ing between $0.30 and $0.71 an hour to produce hand sanit­izer, toilet paper, and protect­ive gowns that will be distrib­uted across the state. In Louisi­ana, pris­on­ers are making hand sanit­izer for about $0.40 an hour. And in Arkan­sas, where incar­cer­ated work­ers are produ­cing cloth masks for pris­on­ers, correc­tional officers, and other govern­ment work­ers, their labor is entirely uncom­pensated.

This unpre­ced­en­ted health emer­gency is re-expos­ing how our coun­try’s long-held prac­tice of paying noth­ing or next-to-noth­ing for incar­cer­ated labor, with no labor protec­tions, is akin to modern-day slavery.

Pris­on­ers are not protec­ted by the Fair Labor Stand­ards Act (FLSA), the federal law estab­lish­ing minimum wage and over­time pay eligib­il­ity for both private sector and govern­ment work­ers. In 1993, a federal appeals court held that it is up to Congress, not the courts, to decide whether the FLSA applies to incar­cer­ated work­ers.

Courts have also ruled that the National Labor Rela­tions Act, which guar­an­tees the right of private sector employ­ees to collect­ive bargain­ing, does not apply in pris­on­ers.

Even worse, pris­on­ers are excluded from the U.S. Occu­pa­tional Health and Safety Admin­is­tra­tion protec­tions that require employ­ers to provide a safe work­ing envir­on­ment. This dehu­man­iz­ing lack of protec­tion for prison work­ers has long subjec­ted them to condi­tions that have endangered their phys­ical safety.

Amid a health threat that worsens in crowded envir­on­ments, many pris­on­ers are work­ing without any mandated protec­tions. Congress must amend the language of federal employ­ment protec­tions to expli­citly extend to work behind bars.

Forced labor in pris­ons has its roots in the post-Civil War Recon­struc­tion period, when South­ern plant­ers faced the need to pay the labor force that had long worked for free under brutal condi­tions to produce the economic capital of the South.

Though the 13th Amend­ment abol­ished “invol­un­tary servitude,” it excused forcible labor as punish­ment for those convicted of crimes. As a result, South­ern states codi­fied punit­ive laws, known as the Black Codes, to arbit­rar­ily crim­in­al­ize the activ­ity of their former slaves. Loiter­ing and congreg­at­ing after dark, among other innoc­u­ous activ­it­ies, suddenly became crim­inal. Arrest and convic­tions bound these alleged crim­in­als to terms of incar­cer­a­tion, often sentenced to unpaid labor for wealthy plant­a­tion owners.

In the follow­ing decades, South­ern states — desper­ate for cheap labor and revenue — widely began leas­ing pris­on­ers to local plant­ers and North­ern indus­tri­al­ists who took respons­ib­il­ity for their hous­ing and feed­ing, a prac­tice known as convict leas­ing.

Under this system, the captive labor market worked long hours in unsafe condi­tions, often treated as poorly as they had been as slaves. Records approx­im­ate that on an aver­age day between 1885 and 1920, 10,000 to 20,000 pris­on­ers — the over­whelm­ing major­ity of them Black Amer­ic­ans — contin­ued to toil under these insuf­fer­able circum­stances.

In the 1930s, a series of laws prohib­ited state pris­ons from using prison labor, but the federal govern­ment contin­ued to rely on this work­force to meet the demands of the rapidly chan­ging markets of mid-century. By 1979, Congress passed legis­la­tion allow­ing state correc­tions offi­cials to collab­or­ate with private indus­tries to produce prison-made goods, birth­ing the modern era of prison labor. 

Today, approx­im­ately 55 percent of the Amer­ican prison popu­la­tion works while serving their sentences. Prison jobs are broadly divided into two categor­ies: prison support work — such as food prepar­a­tion, laun­dry services, and main­ten­ance work — and “correc­tional indus­tries” jobs, in which pris­on­ers might make license plates, sew milit­ary uniforms, or staff a call center. It is pris­on­ers in correc­tional indus­tries who are currently being deployed to help meet the nation’s need for protect­ive gear.

While so many behind bars are manu­fac­tur­ing items the coun­try desper­ately needs to combat our current health crisis, their low wages and lack of labor protec­tions — among myriad other factors — mean they are not accor­ded the same bene­fits or recog­ni­tion as other work­ers.

What’s more, the measly cents per hour that is typical compens­a­tion across often-danger­ous prison jobs is not nearly enough to cover the court fees and fines, resti­tu­tion, child support, and room and board expenses that most state depart­ments of correc­tions deduct from pris­on­ers’ earn­ings. When there is anything left, it is barely enough to pay for commis­sary goods such as food, hygienic products, and toiletries, let alone marked-up email services that pris­on­ers rely on to stay in touch with their loved ones. Despite work­ing for years, many pris­on­ers are left with thou­sands of dollars in crip­pling debt by the time they complete their sentences.

In 2018, pris­on­ers in dozens of facil­it­ies across the coun­try went on strike and issued a list of demands, which included “an imme­di­ate end to prison slavery” and that pris­on­ers be “paid the prevail­ing wage in their state or territ­ory for their labor.”

This time of national emer­gency requires that every­one do their part to slow the spread of coronavirus. The signi­fic­ant short­age of face masks, protect­ive gowns, and hand sanit­izer that is putting the lives of our front­line work­ers in jeop­ardy neces­sit­ates bold and swift action. But if the states and federal govern­ment are going to rely on correc­tional labor to manu­fac­ture this equip­ment, they need to improve the wages and labor protec­tions of our incar­cer­ated work­ers. To fail to do so is not far off from the devalu­ation and brutal­iz­a­tion of slave labor that was ostens­ibly aban­doned a century and a half ago.