II. Modern Manifestations

In her 2010 book, civil rights lawyer and legal scholar Michelle Alexander refers to the modern American criminal justice system as the New Jim Crow. This accusation is based on the observation that today's prisons confine overwhelming numbers of black men, the knowledge that criminal justice has historically been used as a tool of racial oppression, and the insight that, in modern society, one's status as convict has become a permanent badge of inferiority relegating millions of Americans to permanent second-class citizenship. Alexander writes: Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.

The historical use of felon disenfranchisement and prison slavery following the Civil War was enabled by the criminal exceptions to the Thirteenth and Fourteenth Amendments and intended to perpetuate racial subjugation. Today, those intended effects continue on a larger scale and with strikingly similar racial results.

A. The Continued Use of Felon Disenfranchisement

Nearly a century after the Civil War, as most of the nation's black population continued to reside in the South, thinly-veiled racialized voting laws like poll taxes, literacy tests, and felon disenfranchisement succeeded in all but eliminating the voting power of black communities in the South. As late as the 1960 presidential election, a mere thirty-one percent of Southern blacks voted, compared to seventy-five percent of Southern whites and eighty-one percent of non-Southern blacks. As political research reveals, the impact of these practices was not restricted to the Southern region; in fact, these practices influenced the outcomes of national elections and the trajectory of American politics as a whole.

In their 2006 book titled Locked Out: Felon Disenfranchisement and American Democracy, Jeff Manza and Christopher Uggen note that Southern white political dominance, achieved through the disenfranchisement of Southern blacks, allowed for the development of the one-party solid South, which routinely elected and reelected conservative southern Democrats . . . . Under Congress's institutional rules, these long-serving representatives were able to acquire enormous leverage through seniority in the congressional committee system. This influence was used to advocate traditionally conservative ideological values like states' rights and the social order of the southern plantation economy.

Due to their monopolization of Southern politics and the various methods employed to disenfranchise black voters, these representatives' influence was also largely disproportionate to the size of their actual constituencies. Generally, congressional districts were apportioned representation based on population counts. Because Southern districts included their sizeable black communities, the disenfranchisement of Southern blacks translated into the super-enfranchisement of Southern whites. For example, in a fifty percent black Southern district where no blacks voted, each white vote held twice the influence of a Northern vote cast in a fully enfranchised district. In this way, the disenfranchisement of Southern blacks empowered Southern whites at the democratic expense of most everyone else.

In response to post-World War II civil rights activism, the federal government took action to restrict facially neutral forms of voter discrimination beginning in the 1950s and 1960s. This included ratification of the Twenty-Fourth Amendment in 1964, which outlawed all forms of poll taxes, and the Voting Rights Act of 1965, in which Congress exercised authority under the Fifteenth Amendment to effectively outlaw literacy tests and other voter qualifications designed to abridge black citizens' access to the ballot. In light of these victories, however, no federal action was taken to outlaw felon disenfranchisement or eliminate the criminal exception to constitutional voting rights.

After unsuccessful legal challenges in the 1970s and 1980s, felon disenfranchisement gained widespread publicity following the 2000 presidential election. At the time, Florida was one of several states that permanently disenfranchised individuals with felony convictions even after their prison sentences had ended. As a battleground state for the American presidency, Florida voting policies were heavily scrutinized and thrust onto the national and international stage. According to official figures from the U.S. Federal Election Commission, George W. Bush won Florida's popular election by a mere 537 votes. Researchers estimate that the state's laws disenfranchised 827,000 Floridians--a majority of whom were black and Latino.

Nationally, researchers today estimate that more than five million Americans, or one in forty-one adults, are disenfranchised by a patchwork of state laws. More than two million of these otherwise eligible voters have completed their criminal sentences. Black men are disenfranchised at a rate seven times the national average, and a total of 1.4 million, or thirteen percent of the nation's entire black male population, cannot vote as a result of criminal conviction. Based on present rates of incarceration, three out of every ten black men will lose the right to vote at some point in their lifetimes.

Though forty-eight of the fifty states actively employ some form of felon disenfranchisement policy to restrict the voting rights of individuals while in prison, or even after release, the most restrictive laws are commonly found in the very same Southern states where slavery and Jim Crow once thrived. Indeed, scholars assert that the number of African Americans currently unable to vote due to felony disenfranchisement has resulted in a modern-day Jim Crow era.

Even after a recent wave of state legislative reforms, the most restrictive and racially disproportionate felon disenfranchisement laws continue to be found in former Confederate states. Kentucky and Virginia are the only states that currently impose lifetime voting bans on individuals with felony convictions, which may only be overcome through gubernatorial pardon. As the table below illustrates, this region's punitive voting laws have very real consequences: nine of the eleven former Confederate states have statewide disenfranchisement rates greater than the national average, and eight states exhibit African American disenfranchisement rates greater than that of the United States as a whole.


B. The Varied Forms of Modern Prison Labor

Due to economic shifts, the convict leasing and penal plantation systems that were created and thriving in the South for decades following the Civil War, began to diminish in influence and scale by the 1940s. The Southern agricultural economy's foundation in cotton was devastated by the crop's sinking price and boll weevil epidemic after World War I. Similarly, technical advances in industrial trades, such as mining and transportation, greatly reduced the demand for crude and dangerous manual labor that convicts had supplied.

Facing growing international condemnation of America's domestic race relations, the Federal Bureau of Investigation began investigating convict leasing contracts and work sites with high fatality rates in the first half of the twentieth century. Amidst increased external oversight and diminished financial incentives, Southern states largely abandoned the most horrific forms of prison labor that had, for decades, placed little worth on convicts' lives and resulted in countless deaths by illness, injury, and outright murder. Nevertheless, forced field labor continues to be a feature of incarceration in several former slaveholding states where prisons are located on the very same plantations slaves toiled more than 150 years ago.

One such prison farm is Louisiana State Penitentiary, also known as Angola state farm. Composed of a block of former slave plantations repurposed as a prison farm following the Civil War, it is the nation's largest per acreage prison. Inmates, eighty percent of who are black, plant and pick crops of cotton, sometimes for more than sixty hours per week, at an hourly rate of four to twenty cents. As recently as 1951, harsh work conditions and guard brutality at the prison were so great that inmates cut their own Achilles tendons in protest. The picture was the same at a similar prison farm in Mississippi. Although litigation and reform have reduced violence and led state corrections officials to reframe prison slave labor as a source of educational and vocational opportunities, the involuntary servitude continues largely unchallenged. As recently as 2002, according to the Criminal Justice Institute's Corrections Yearbook, sixteen percent of prisoners in Louisiana, seventeen percent of those in Texas, and a staggering forty percent of prisoners in Arkansas were compelled to perform farm labor. In a 2008 article on the topic, a Louisiana prison activist commented, Angola is disturbing every time I go there . . . . It's not even really a metaphor for slavery. Slavery is what's going on.

The forms of prison slavery that most closely resemble the antebellum institution are concentrated in a few Southern states, yet the model of using prisoners as a source of cheap labor has been widely duplicated by other industries and in other regions. As the economy has evolved, prison labor has found a place in private industry, earning profits for many states and corporations outside of the South.

Federal laws passed under the interstate commerce power during the Great Depression sought to restrict the use of prison labor in private industrial production. This was an effort to protect the jobs of non-prison workers (often referred to as free labor) who could not compete with the low-wage prison labor supply. The Hawes-Cooper Convict Labor Act of 1929 and the Ashhurst-Sumners Act of 1935 prohibited interstate trading of prison-made goods and substantially blunted the private market for prison labor. Efforts to amend those statutes in the 1970s culminated with the Justice System Improvement Act of 1979. Intended to foster a more accountable, economically efficient, and scientifically based justice system, this law created the National Institute of Justice and Bureau of Justice Statistics. With regard to incarceration, the law allowed for the privatization of prisons and lifted the ban on interstate trade of goods produced by prison labor. The impact was enormous and led to a massive increase in private prison labor sales, from $392 million in 1980 to $1.31 billion in 1994.

The basis of support for expanded prison labor programs is diverse. Some advocates insist that work plays a vital and beneficial role in the rehabilitation process--teaching both discipline and work ethic--which provide inmates with job skills that can prove valuable upon release. To others, work should be part of the punishment of prison, and paid labor provides the state a means of recouping money to offset the cost of incarceration and provide for victim funds. A less often articulated, though clearly influential, source of support for prison labor is the substantial profit potential it offers to private corporations that opt to produce their goods in this way, foregoing union-negotiated wages and benefits for prisoners who rarely earn minimum wage.

Regardless of the particular or combined motives behind the political and public endorsement of inmate work, private industry has become deeply embedded in the prison labor scheme. The War on Drugs and increasingly harsh state and federal sentences spawned unprecedented rates of incarceration in the past three decades. The timing of this increase in the prison population coincides remarkably well with the congressional repeal of restrictions on private use of prison labor. According to the Bureau of Justice Statistics, more than 2.3 million Americans were incarcerated in prison or jail in 2008, compared to just 501,886 in 1980. That represents a more than 400% increase over less than thirty years. National census figures, on the other hand, indicate the American population increased by less than thirty-five percent during the same time period. As noted above, these inmate populations are disproportionately poor, black, and Latino.

Because internal prison workforces cannot absorb all the inmates in need of jobs with positions as institutional librarians or dishwashers, there are now more prisoners than available work. For states, corporations, and advocates of prison labor, private industry provides the perfect employers to fill the gap, even if attracting them requires exempting prisoners from minimum wage laws and repealing some of their most basic civil rights protections.

Though precise statistics on prison labor are rarely collected and difficult to confirm, an estimated 90,000 state and federal convicts work in a variety of public and private enterprises while serving time. Most inmates work in state-owned enterprises but, as of approximately ten years ago, private businesses have contracted with at least thirty-six states for prison workers. Total sales from these industries grossed more than $800 million, $83 million of which were in the private sector. Some states have even made prison leasing compulsory. Oregon, for example, passed a ballot initiative in 1994 which mandates that all prisoners must work 40 hours per week, and requires the state to pro-actively market prison labor to private employers.

Indeed, while old fashioned prison labor still exists, such as the farm labor discussed above and the chain gangs resurrected in Alabama, Arizona, Florida, and elsewhere, most modern prison labor involves industry, in which inmates perform factory work for low or no wages and without the ability to organize for better pay or benefits. The exploitation is especially apparent when one considers that, after state deductions for taxes, costs of incarceration, and victim restitution funds, many prison workers with private industry jobs make around $1.50 per hour. Worse, those employed in state-owned industries often earn less than $0.50 per hour.

There are many examples of government and private businesses cashing in on this opportunity. Federal Prison Industries employed around 21,000 federal inmates as of 2000, producing a wide range of products sold to federal agencies and private businesses for total sales of $600 million per year and annual profits of over $37 million.

In efforts to cut costs and prevent threatened labor strikes among its workforce, the Boeing Corporation relocated its Seattle-based factories in 1996, with an eye toward employing a less demanding workforce. One factory was moved to the Washington State Reformatory, twenty-five miles away, and the other relocated to China. In a March 1997 article, activist and former prisoner Paul Wright likened the plight of inmate workers to the oft-criticized conditions under which foreign workers toil for American companies overseas. After discussing a local newspaper article that critiqued the coercive and exploitative labor practices in Boeing's Chinese factory, Wright discussed how many of the same charges could potentially be levied at the prison work site:

If the Seattle Times had come to the Washington State Reformatory to describe the setup that these companies enjoy, it could [also] have written, Employees live right next to the factory premises. They are forbidden to form any type of trade union, much less an independent one. For those who step out of line on the shop floors of Washington prisons, there is the notorious Intensive Management Unit of reeducation through sensory deprivation fame.

But Boeing in Washington State is not alone. In 1993, Lockhart Technologies closed its Austin, Texas plant, eliminating 130 circuit board assembly jobs that paid ten dollars an hour and replacing them with inmates from the nearby Lockhart Correctional Facility who made minimum wage, required no benefits or workman's compensation coverage, and worked in a state-subsidized facility on prison grounds for which the company paid just one dollar in rent per year. In recent years, an Ohio supplier of Honda automobile parts paid inmates two dollars per hour to perform the same work unionized free workers had done for twenty to thirty dollars per hour; an Arizona company closed its unionized slaughterhouse to open a prison operation at much lower cost; and in 1997, within one year of opening a production facility in a Wisconsin prison, the Fabry Glove and Mitten Company's inmate workforce, paid $5.25 per hour, had grown to 100 while its free labor force, paid $11 per hour, had shrunk from 205 to 120.

Prison labor is not just a prisoner issue. A few years after the implementation of Oregon's mandatory prison labor law, for example,

[t]housands of public sector jobs [had] been taken over by prisoners; workers in the private sector [had] been laid off when their firms lost contracts to prison-based industries; and with the cost of supervising a full-time work force, the state for the first time in its history [was] spending more on corrections than on higher education.

Similar to the way disenfranchisement weakens the voting power of voters in states that do not disenfranchise, or do so at a substantially lower rate than other states, mandatory, widespread prison labor floods the employment market with low-wage laborers. This kind of domestic outsourcing enriches private business by exploiting prison workers and depriving non-prison workers of the living wages and employment benefits they have unionized and fought to achieve.

Although prison labor today may look different than it did a century ago, it continues to primarily serve the purpose of exploiting the poor and black for the benefit of the rich and powerful and maintenance of the status quo.

The drive to make prisons pay--while racking up a hefty profit for the industry--fits well with the continuing transformation of America into a nation of small government, big corporations, and big prisons. . . . [I]t gives the public a false impression that meaningful reform is taking place. Meanwhile, it takes pressure of [sic] a system that cannot provide enough decent jobs, and uses incarceration as the remedy for the ills of poverty, unemployment, inadequate education, and racism.

Faced with uncertain times and changing social order, the post-Civil War South criminalized the newly freed black population and sought to obscure the era's pressing social changes as problems of crime necessitating prison-based correction. Similarly, the American public is today misled to support mass incarceration as a panacea for contemporary social challenges while corporations profit from the lie, poor racial minorities are labeled criminal and freely exploited, and the Constitution turns a blind eye.