Excerpted From: Tiffany Yang, Public Profiteering of Prison Labor, 101 North Carolina Law Review 313 (January, 2023) (321 Footnotes) (Full Document)


TiffanyYangIn August 2021, Jailhouse Lawyers Speak (“JLS”)--a collective of imprisoned organizers a nationwide call for “Shut'em Down Demonstrations” within and beyond prison walls. JLS invited people to “[s]tep up in the spirit of abolition” and join the ongoing movement to “end prison slavery,” a demand that over forty organizations endorsed. Incarcerated people participated by engaging in work strikes, sit-ins, spending boycotts, and hunger strikes. At the same time, non-incarcerated allies held demonstrations in solidarity with incarcerated organizers. Across from the Men's Central Jail in Los Angeles County, rally speakers observed the carceral state's reliance on poverty and profit. Next to Wisconsin's Green Bay Correctional Institution, community members chanted, “You are not forgotten, you are not alone.”

The demand for prison labor reform is not new. The history of prison labor traces the “cruel intersection” of race, exploitation, and incarceration, and it sits “within a longer national tradition of anti-Black nation-building and racist statecraft.” Echoes of this history persist in modern systems of prison labor, which are often characterized by absence: the absence of just compensation, workplace protections, and the power to unionize. These systems are also defined by punishment. Labor can be required of anyone confined in the prison even in the absence of statutory obligations, a refusal to work carries swift and severe penalties.

The coerced, punitive, and un(der)compensated conditions of prison labor have compelled many incarcerated people to urge reform. In 1971, incarcerated organizer L.D. Barkley declared, “We are men! We are not beasts,” and putting a “stop to slave labor” became one of the demands of the Attica prison uprising. Forty-five years later, on the anniversary of this uprising, incarcerated organizers coordinated a nationwide strike. The manifesto of this 2016 strike announced, “We will not only demand the end to prison slavery, we will end it ourselves by ceasing to be slaves.” Over 24,000 people across as many as fifty prisons participated. This effort inspired another nationwide strike just two years later. Included in the list of ten demands was “[a]n immediate end to prison slavery” such that all incarcerated people would “be paid the prevailing wage in their state or territory for their labor.” During the three-week strike in 2018, an estimated 24,000 prisoners in over twenty-eight states refused to work.

The strikes and demonstrations organized by incarcerated people are instructive. They unveil the realities of a system of labor that hides behind and beyond prison walls. And they focus attention on the distinctive nature of labor in public prisons: prisons owned and operated by state and federal governments. This is a stark departure from much of the conversation surrounding prison labor reform, which often centers the privatization of prisons or the privatized profits harvested from prison labor. Such a focus is understandable given that private interests explicitly prioritize the accumulation of profit on the backs of low- or no-wage labor. Yet, the penal labor in public prisons is afflicted with many of the same abuses that are prevalent in private institutions. And governments are uniquely positioned to benefit from prison labor in important ways that evade scrutiny.

This Article contributes to this conversation by examining the public profiteering of prison labor. It begins by considering a statutory bulwark for protecting the rights of workers, the 1938 Fair Labor Standards Act (“FLSA”)--a piece of legislation that has been described as “the original antipoverty law.” The FLSA becomes a lens to assess the federal courts' imprecise perceptions of the economic reality of incarcerated labor. Part I outlines the efforts made by incarcerated workers to avail themselves of the FLSA's protections, most notably its minimum wage requirement, and the federal courts' near-universal refusal to apply the Act to prison labor. This part pauses on a brief momentum of decisions that made tentative steps towards coverage and ends with a discussion of why and how the federal courts swiftly reversed course. In so doing, it considers the purported justifications for the denial of FLSA protections and focuses on one consistent rationale offered by the courts: although governments benefit from prison labor, any advantages do not amount to an “unfair windfall” that merits concern.

Part II illustrates why this impression is wrong. Section II.A provides a brief history of how, on the heels of Emancipation, governments sought to recapture enslaved labor through the criminalization and incarceration of newly freed Black communities. An understanding of modern forms of prison labor is incomplete without recognizing this history, which reveals that the original purpose of this labor system was to secure--and grow--the state's profits. Section II.B then describes the various ways that governments continue to profit from modern systems of prison labor, and it focuses on the state's reliance on this labor to perform (often hazardous) public works and government services--a reincarnation of the convict leasing and chain gang systems that defined this post-Emancipation period.

Part III then turns to one possible impact of this public profiteering. It identifies how state actors have attempted to thwart decarceral efforts to reduce the size and scope of the prison industrial complex so they can protect a captive pool of incarcerated workers they hope to reliably exploit. And it explains why the most common defense of public profiteering--that prison labor is a “public good” needed to offset the costs of incarceration--is an empty justification.

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In any conversation surrounding prison labor, it is critical to center the voices and demands of those directly impacted. Incarcerated populations are not a monolith. Many define prison labor as “slave labor” and have organized to end its coercion, or to fight for just compensation. Others explain that volunteering for the most hazardous prison jobs, though it “risk[s] life and limb for a state that is caging them,” nonetheless is “a rational” and “safe[] choice” given the violence, danger, and more severe restrictions of physically remaining in prison. Others believe that calling prison labor a “form of slavery” is “unfair[] and even counterproductive” to needed reform. They note that “[t]he risk of the slavery conversation” is an end to all labor programs, particularly those (like fire camps) that allow people to leave the physical confines of the prison, which they find offer “the most humane places to do time in the ... prison system.”

But regardless of the epithet applied to prison labor, it is undeniable that it is “about as uneven an exchange as one could imagine.” It is for this reason that incarcerated people have organized demonstrations, hunger strikes, and work stoppages--why they have penned op-eds and spoken with national media despite great risk of retaliation. Their lived experiences reflect the true realities of their incarceration. And it is up to us to listen.

Supervising Attorney and Teaching Fellow, Appellate Litigation Clinic, Georgetown University Law Center.