Excerpted From: Laura I Appleman, Bloody Lucre: Carceral Labor and Prison Profit, 2022 Wisconsin Law Review 619 (2022) (656 Footnotes) (Full Document)


LauraApplemanThe profit motive is inextricably intertwined with America's system of carceral labor and criminal punishment. Profit incentives have exerted a profound influence on the shape of American carceral labor. This dynamic has held fast through slavery, Reconstruction, the Industrial Revolution, the Great Depression, and the Great Society, continuing through today. The profit motive surfaces in all forms of detention through U.S. history, not only for the convicted but also for the disabled and those who are not citizens.

If profits are a major motivator of American mass incarceration, then carceral labor is one of the primary engines driving the entire enterprise. Along with the institution of slavery, involuntary carceral labor created huge returns by transforming human toil into monetary gain. From sixteenth-century British convict transportation to twenty-first-century private corrections companies, involuntary carceral servitude has been a feature of criminal punishment, always with an eye toward revenue. This Article traces the coruscating power effect of profits within the criminal justice system, charting the ways this focus on revenues has shaped the forced toil of those under correctional control.

From a citizen's first interaction with the justice system through their release into the community, profit-seeking is embedded in our modern carceral machine. This particularly American motivation can be tied, in part, to deep-rooted eugenic beliefs still informing our carceral system. For centuries, society has judged those who can work or produce as genetically superior to those who cannot. This belief system undergirds the criminal justice system as well. The Puritan work ethic remains a motivator of criminal process, finding its apogee in involuntary carceral labor: everyone must produce, even while under correctional control. In many ways, our modern version of eugenically driven incarceration is transparent in that today's criminal punishment is sold to private businesses as a way of extracting profit from so-called unproductive “undesirables” through the process of obligatory work.

This Article is the first piece of scholarship to comprehensively detail and trace the role of money-making in carceral labor apart from slavery, from the early colonial period through our current time. By thoroughly evaluating our carceral history and dissecting the financial currents that have shaped the many forms of required inmate labor, we will be better able to disentangle another way lucre influences our system of mass incarceration. A full understanding of our carceral past will help us begin to rechart the course of modern criminal justice, hopefully eliminating this kind of involuntary servitude for good.

This Article proceeds in five parts. Part I details the history of early colonial and American criminal justice, explaining how beginning with the British arrival, profits were always associated with imprisonment and quickly became enmeshed with carceral labor, which was thought to improve men in both body and soul. Part I then moves to the development of early nineteenth-century industrial prisons, which were the first to make carceral labor the primary focus of incarceration, to better extract revenue from the incarcerated.

Part II carefully examines the two very different trajectories between the North and South in post-Civil War carceral labor. This Article contends that in the South, the entrapment of many Black citizens into carceral bondage was equally a function of profit-making as it was of virulent racism. Although many standard historical accounts conclude that the brutal regime of Southern carceral labor ended with convict leasing, the Article additionally explores how these practices simply continued under other names, including the chain gang, debt peonage, and penal farms. This Article comprehensively analyzes the entirety of such servitude through the lens of profit. In doing so, it finds that the South's postbellum utilization of deadly carceral labor practices was motivated by an unaltering focus on money-making demanded by the state, the county, the criminal justice system, and innumerable private industries.

Part II additionally scrutinizes the concomitant transformation of northern penal institutions into more modern sites of commerce, relying upon carceral labor to do so. It looks in particular at the growing emphasis on inmate “hard labor,” as well as the increasing federal and state interest in extracting revenues from prisons instead of investing in them.

Part III investigates modern-day carceral labor practices in prisons, jails, and alternative correction sites, finding that most inmate work is still designed to create revenues for both government agencies and private businesses, with little thought for or focus on the incarcerated persons themselves. Part III also details how modern-day carceral labor, although less overtly racist and lethal, still exploits the incarcerated for maximum profits.

Part IV analyzes the many complicated ways that laws including federal labor laws, Social Security regulation, tax laws, OSHA, and the Clean Air Act, assist in making corrections a revenue-creating enterprise. In addition, Part IV looks at how the banking industry helps prop up many private companies profiting from inmate labor, making it possible for these businesses to thrive.

Finally, Part V focuses on potential solutions for the carceral labor situation as it currently exists, highlighting the national movement to revise the Thirteenth Amendment to eliminate slavery in all aspects, state abolition amendments, minimum wage floors, and divestment from companies using carceral labor. All of these solutions point to the necessity of eliminating involuntary carceral servitude.

The connection between money, crime, and punishment has a long and sordid history in Anglo-American legal culture. “Moral hazards abound” when we allow profits to dictate criminal punishment, particularly when that punishment requires forced carceral toil for the benefit of state and private industry. It is past time to break the chain of compulsory labor for incarcerated individuals and give them choice, fair wages, and dignity. Eliminating this last vestige of slavery and involuntary servitude is a crucial step toward making the world of criminal justice more just.

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“Comprised of institutions that include courts, police and sheriffs' offices, and prisons and jails that warehouse predominately poor people, the criminal justice system and many of its stakeholders derive profit in various ways from those caught within its grip.” Roughly half of American inmates worked in some form as of 2018, many unwillingly and even more under very harsh conditions. These carceral workers, however, largely have been ignored and forgotten. “[T]oiling at the margins of the American economy,” these incarcerated individuals generate profit for private industry and cut costs for state and local governments but get little payment or benefit for themselves. Carceral labor essentially still functions as modern penal servitude, itself a quintessentially American invention.

As Amna Akbar has argued, our system of mass incarceration demonstrates a passionate “commitment to extracting capital from Black labor.” And yet there has been little focus until very recently on the role of profit and capitalism in our criminal justice system. This Article has sought to lay out the historical path of profiteering in punishment, looking particularly at how carceral labor--and often the literal body, blood, and bones of inmate workers--has shaped the system of mass incarceration today. Although many aspects of such carceral labor have changed, the ineradicable extraction of revenues from the corpus of the imprisoned remains.

Where to go from here is the difficult question. Answers have ranged from outright abolition of prisons to requiring minimum wage or a living wage for prison labor to eradicating all involuntary carceral labor. What is clear, however, is that removing the cash from carceral labor will be no easy task given the deep enmeshing of profitability with mass incarceration. The economic forces underlying and benefiting from carceral labor range from investment funds to major corporations and are thus difficult to dislodge from the prison-industrial complex. Indeed, “today's prison entrepreneurs view inmates not only as exploitable workers, but also as captive consumers and tenants, as well as tickets to government money.” Loosening the commercial grasp will be a long and complex process.

If the history of the prison is the history of brutal prison labor, then at minimum we must try to envision a different kind of criminal incarceration, one that allows inmates the dignity of meaningful work with appropriate compensation along with the right to choose what type of work they undertake. Otherwise, a criminal sentence will continue to be what it has always been: a “pernicious form[] of servitude” in which inmates are trapped in the service of endlessly increasing profit, the literal revenues of physical toil, suffering, and exploitation. The twenty-first century can and must do better.

© Laura I Appleman 2022. Van Winkle Melton Professor of Law & University Research Integrity Officer, Willamette University. J.D., Yale University; B.A., M.A., University of Pennsylvania.