The Covid-19 pandemic has served a moment of reckoning for people worldwide, as we reconsider which workers are “essential,” and whether we treat them as such. In this conversation, it is important that we do not forget some of the most vulnerable of these essential workers: incarcerated laborers. Prisoners have been amongst those who have worked through the pandemic, making personal protective equipment (PPE) for frontline workers and working in agriculture to help keep food on shelves.
The Thirteenth Amendment abolished slavery in the United States, except “as a punishment for crime.” This exception allows states to maintain their reliance on forced, uncompensated, and predominantly Black labor to this day. The negligent and coercive power dynamics at play in the prison labor system have created conditions that the pandemic has exposed as not just hazardous but life-threatening.
This post explores the lessons that we can learn from the COVID-19 pandemic about the prison labor system in the United States and includes personal accounts from Charity Ryerson, CAL’s Executive Director. (Read Part II of this series here.)
Current Trends in the Use of Prison Labor in the United States
Today, of the 1.51 million people incarcerated in prisons in the United States, over half are employed in some kind of work. And although Black Codes and Jim Crow laws are no longer on the books, Black Americans today are still incarcerated in state prisons at more than five times the rate of white Americans, resulting in an inmate workforce that is still disproportionately Black. While employment opportunities can be rehabilitative and lead to reductions in recidivism rates, many inmates are forced to work and often face gruelling and dangerous working conditions with shockingly low wages. Most inmates are engaged in in-house work within correctional facilities, including assignments in food service, cleaning, laundry, groundskeeping, maintenance, and custodial services. However, around 63,000 inmates work in prison industries that produce goods for external sale.
Charity Ryerson, CAL’s Executive Director, served six months in federal prison for civil disobedience in 2003. The prison, located in Pekin, Illinois, housed medium security male inmates and minimum security female inmates, as well as a Federal Prison Industries (UNICOR) factory. The bulk of factory work was performed by the incarcerated men, under a contract with the federal immigration agency at that time – the Immigration and Naturalization Service (INS). The factory produced cages for immigrants: metal boxes designed to fit in the back of a pickup truck, labeled with a diagram of eight men squeezed in and an “escape-proof guarantee.” Charity’s job was to drive a forklift and separate the aluminum and steel scraps left over from the production process. The prison paid Charity for her labor, even though she played a supporting role to the UNICOR factory. She earned only twelve cents per hour. Her labor, like that of many of her peers, functioned as a subsidy to UNICOR, a for-profit company.
Keeping Society Safe and Fed for 12 Cents an Hour
The Covid-19 pandemic has highlighted the country’s reliance on prisoners to perform undesirable or risky tasks for next to no pay. In recent months, inmates working in correction industries have been tasked with making the PPE so badly needed by healthcare workers and others on the frontlines. In at least 20 states, inmates are making hand sanitizer (which inmates are often prohibited from using), face masks, and protective gowns. In Oregon they are washing hospitals’ laundry. In New York City, inmates at Rikers Island are being paid $6 per hour to dig mass graves for Covid-19 victims.
Inmates are not only producing PPE during the pandemic. In response to a shortage of migrant labor caused by forceful anti-immigration legislation, state lawmakers have increasingly turned to prisoners to perform agricultural work. Echoing the old convict leasing system, where prisons leased inmates to provide free labor for plantations, private corporations still partner with prisons to feed the public. In ordinary circumstances, inmates performing agricultural work are forced to work in some of America’s most hazardous and under-regulated industries without adequate protections or compensation. Now that the country is battling a pandemic, inmate workers in the food industry are even more at risk.
In March 2020, Hickman’s – the fourth largest egg producer in the US – began housing more than half of their inmate workforce closer to their barns so that 139 inmates could continue to work during the pandemic. Arizona Correctional Industry’s contract with Hickman’s is allegedly worth $5 million, and while the contract stipulates that inmates must be paid the local prevailing wage, the prison can deduct up to 80% of the inmates’ earnings. Tragically, at least five inmates living at the Hickman’s facility have tested positive for Covid-19. In North Carolina, incarcerated workers at Wilkes Correctional Center also continued to process chickens for a Tyson Foods plant at “minimum wage” (minus deductions). Despite shutting down plenty of other prison programs due to the virus, including family visitations and volunteer programs, North Carolina continued to operate the work release program with Tyson until caving into public pressure, following reports that 570 workers and one inmate worker tested positive for Covid-19.
By law, incarcerated workers do not have to be paid. Some states take this to heart. Alabama, Arkansas, Florida, Georgia, South Carolina, and Texas do not pay incarcerated workers for most regular jobs performed within the prison. Inmates in other states are not much better off, as most state prisoners earn between $0.12 and $0.40 per hour of work. Even if an inmate secures a higher-paying correctional industries job – which about 6% of people incarcerated in state prisons do – they still only earn between $0.33 and $1.41 per hour. While some prisoners are receiving hazard pay, which only brings their wages up to cents an hour, inmates in states like Arkansas and Texas are still completely uncompensated for their work during the pandemic.
Incarcerated workers receiving pay cannot simply pocket their daily earnings. First, they must settle any financial obligations that they might have incurred during their trial or incarceration. For example, under UNICOR’s Inmate Financial Responsibility Program, inmates must contribute half of their earnings to pay off financial obligations, including court-ordered fines, victim restitution, child support, incarceration fees, and other monetary judgments. This means that even participants in the Prison Industry Enhancement program – who must be paid local “prevailing wages” – may have 80% of their earnings deducted to pay these fees. Moreover, living in prison is not “free,” contrary to commonly-held misconceptions. Incarcerated people in many states have to pay for necessities like soap (which can cost more than $2), feminine hygiene products, and making phone calls to family members.
In some states, work is mandatory, even during Covid-19, and inmates face disciplinary action if they refuse to work in the factories. For others, it remains a financial necessity. While some states have announced that they are providing free soap, most still require inmates to purchase the necessity, which is the most effective means of killing the virus. Additionally, prison facilities across the country have suspended visits from family and lawyers, increasing prisoners’ reliance on expensive phone calls or video conferencing.
Charity found the labor environment at Pekin Federal Prison to be dehumanizing. Several of the guards were verbally abusive and condescending, and those who were not failed to intervene. Shortly after beginning work in the warehouse, she was warned by a fellow prisoner to stay away from the freezers alone – everyone knew that was where the guards would assault the women. And work was compulsory. Refusal to do so resulted in solitary confinement.
At 12 cents per hour, prisoners at Pekin struggled to pay the high commissary prices (another privatized aspect of the federal prison system) for shampoo, detergent, and basic foods to supplement the otherwise nutritionally deficient fare provided. Fortunately, the inmates were incredibly generous and helped those who lacked outside support when they couldn’t afford deodorant or tampons.
Working in a Pandemic Without Rights or Protections
Besides being excluded from minimum wage laws, prison laborers also lack important worker protections. Federal courts have held that prison laborers are not “employees” under the meaning of the Fair Labor Standards Act, which establishes wage and overtime pay standards. The guarantees of the National Labor Relations Act also do not extend to incarcerated workers, effectively barring them from unionizing.
The CDC has suggested, but not mandated, safety precautions for incarcerated workers, such as social distancing and the use of PPE. It seems that many facilities are not following this guidance, with reports of many of these inmates working in close quarters with no access to products like the protective equipment or hand sanitizer they are producing. With inconsistent access to soap and hand sanitizer and overcrowded facilities making social distancing next to impossible, detention and correctional facilities are particularly vulnerable to the spread of Covid-19. As of July 14, at least 64,119 prisoners had tested positive for coronavirus across the United States.
Exposing prisoners to a deadly pandemic carries a unique set of risks. While many enter prison with chronic health problems, being in prison can lead to worsening overall health. Lack of adequate health facilities and poor quality food can leave prisoners with weakened immune systems and untreated underlying conditions. As a result, prisoners are disproportionately more likely to suffer from existing health conditions.
Charity reports that at Pekin, whether due to low-nutrition food or high levels of stress, illnesses tore through the compound with alarming speed. In mid-December 2003, during Charity’s final month at Pekin, a flu spread through the prison, leaving many women bedridden. Like many others, Charity did not recover as expected. She was too weak to go to the visiting room for her family’s visit on Christmas, and the prison eventually took her off her work assignment after she lost consciousness in a hallway. Like many other jails and prisons, the Pekin clinic was staffed intermittently by a nurse, and by a doctor one day per month.
How Can We Make Prison Labor More Just?
Some inmates have talked about how they like being a part of the fight against the pandemic, and global emergencies certainly call for everyone to do their part. However, the dependence of certain supply chains on uncompensated and involuntary labor, to the point where it is deemed “essential,” is a dangerous reiteration of systems of slavery, regardless of whether it takes place within or outside its constitutionally sanctioned boundaries.
There is a strong argument that prison labor should be illegal in all circumstances. In fact, in 2018, Colorado voters approved Amendment A, a constitutional amendment which states that “There shall never be in this state either slavery or involuntary servitude,” eliminating the punishment clause exception from their constitution. The extreme power dynamics present in carceral settings are the same reason that consensual sex between a guard and a prisoner is always illegal in a majority of states: consent is very unlikely to be meaningful in such a coercive environment.
But Charity and others argue that if we must have prisons, some form of work is valuable for prisoners’ mental health and sense of self-worth, and the system could be structured to reduce the risk of abuse. How?
First, prison labor should be fully voluntary, with no adverse consequences, including lost privileges or an inability to access essentials, for failure to work. Second, prison labor should not result in any significant economic benefit to the prison or any private company that profits from imprisonment. This sets up an incentive for companies to lobby for policies that lead to the mass incarceration of low-level offenders – a perfect captive workforce. Third, prison labor should be covered by the Fair Labor Standards Act, including provisions on payment of the minimum wage and overtime. Fourth, prisoners should be eligible for workers’ compensation, unemployment, and all other available labor-related benefits. Finally, prison work programs should actually provide prisoners with skills and training that will benefit them on the outside, including by providing certificates of completed training, job references from supervisors, and opportunities for advancement.
Cindy Wu and Prue Brady are Legal Interns at Corporate Accountability Lab. Charity Ryerson is the Executive Director and Founder of Corporate Accountability Lab.
Read Part II of this blog series here.
