Matthew T. Mangino
October 21, 2017
The 13th Amendment to the United States Constitution abolished slavery and involuntary servitude. As any high school sophomore knows, President Abraham Lincoln and his Emancipation Proclamation were driving forces behind the official abolition of slavery.
The 13th Amendment was passed by Congress and ratified by the states in 1865. However, there was a notable exception to the 13th Amendment. Slave labor and involuntary servitude could continue in America’s prisons “as punishment for crime whereof the party shall have been duly convicted.”
And, continue it does.
At the federal level, the Bureau of Prisons operates the Federal Prison Industries Program that pays inmates $0.90 an hour to produce everything from mattresses and spectacles to road signs for government agencies, earning the government about $500 million in sales in 2016, according to the Economist.
Overall some estimate that prison labor generates about $2 billion of revenue annually for federal, state and local governments and private businesses.
Prison labor has become so widely accepted that recently Caddo Parish, Louisiana Sheriff Steve Prator lamented a new state program that could release non-violent prisoners early. According to the New York Times, Prater said, “In addition to the bad ones (prisoners) ... in addition to them, they’re releasing some good ones that we use every day to wash cars, to change oil in our cars, to cook in the kitchen, to do all that, where we save money.”
Low-cost, and at times, no-cost prison labor has become so common that most people don’t even know that prisoners are providing essential services. For example, as wildfires ravage California, inmates account for about 40 percent of the firefighters trying to contain the devastating blazes.
Thousands of state prisoners work as firefighters, for as little as $2 a day. As news reports herald the heroic and dangerous work done by firefighter combating wildfires few realize those efforts are being provided for practically nothing.
Incarcerated workers, although not expressly excluded from the definition of employee in federal labor laws, are not provided the protections afforded other workers because of the wording of the Constitution. Courts have reasoned that the relationship between the prison and a “duly convicted” worker is penological in nature and not that of an employer and employee.
According to The Atlantic, incarcerated persons — in spite of the 13th Amendment — lack a constitutional right to be free of forced servitude. The forced labor is not checked by the protections enjoyed by workers laboring in the exact same jobs on the other side of the wall.
Heather Thompson, a professor at the University of Michigan who studies the history of prison labor, told The American Prospect, labor unions ensured during the New Deal era that strong regulations on the use of prison labor were put in place, including a ban on selling prison-made goods across state lines.
However, as the prison population began growing in the 1970s, businesses began lobbying to undo many of those regulations. In 1979, Congress enacted a law that for the first time since the 19th century allowed private companies to “lease” prisoners for work.
Last fall, the Incarcerated Workers Organizing Committee, a project of the Industrial Workers of the World union, drew up plans for a national strike “against prison slavery,” to draw attention to the exploitation of prison labor. Loosely organized strikes sprung up in prisons across the country.
Interestingly, according to The New Yorker, neither the A.F.L.-C.I.O. nor the S.E.I.U., the nation’s two largest union umbrellas, supported the prison strike.
The American labor movement had long opposed “free” work performed by prisoners — on the theory that it undercuts wages on the outside. Today big unions also represent prison guards, and probation officers and government workers who benefit indirectly from cultivating, implementing and managing prison labor.
Slavery continues in America — in every county and state of this great country.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.comand follow him on Twitter @MatthewTMangino.
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