In the new National Review, Stephanos Bibas, a professor at Penn Law School, argues that prison labor ought to be part of our efforts to reform the criminal justice system. He observes that while prisoners were once required to work, organized labor fought the practice in the decades following the Civil War on protectionist grounds, i.e., labor unions didn’t want their members to compete with prison labor, and by 1940 Congress banned inter-state commerce in prison-made goods. Limited exceptions were made in 1979, but prison labor was subject to prevailing local wage laws that tended to make it uncompetitive. And so incarceration in the U.S. is now a form of enforced idleness, during which skills deteriorate and prisoners are not expected to prepare for future employment or pay restitution to their victims.
Bibas proposes changing course. The following are a few of his recommendations:
1. Prisoners should once again be required to work, and minimum-security inmates ought to be allowed to work outside of prison, provided they are monitored by electronic ankle bracelets and tightly-supervised.
2. The wages earned by prisoners could be paid to (a) crime victims, (b) the state, to help defray the cost of maintaining the criminal justice system, (c) inmates’ families, and (d) the prisoners themselves to encourage diligence and hard work, but only after other obligations have been recognized and met. Bibas suggests that having prisoners send a portion of their wages to their families might strengthen their ties to family members, and stronger family ties might inhibit crime once ex-offenders return home.
3. Bibas also considers the idea that suitable convicts be given the opportunity to serve in the military as an alternative to incarceration, a possibility that he acknowledges many military leaders would find problematic. He stresses that criminal enlistees could be treated very differently from others, and that their wages ought to be garnished, etc. Only criminal enlistees who distinguished themselves and proved their mettle would be granted the privileges afforded ordinary soldiers and sailors.
Though many readers will find Bibas’s recommendations discomfiting, it is important to keep in mind the damage that is done by enforced idleness, and the possibility that prison labor has the potential to mitigate the extreme social isolation that makes incarceration such a miserable and destructive experience. Some will object that prison ought to be miserable and destructive, yet Bibas isn’t proposing that it be made pleasant and rewarding. Rather, he is suggesting that we think harder about the idea that criminals ought to pay their debt to society and that we ought to pursue prison reform strategies that will reduce recidivism and heal communities plagued by violent crime, and not just allow society to indulge a taste for punishment.