Law & the Courts

Give Working Prisoners Dignity — and Decent Wages

Inmates at San Quentin State Prison in California, 2012. (Reuters photo: Lucy Nicholson)
Giving prison employment the same legal status as regular work would help inmates before and after release.

As many as 24,000 prisoners in facilities across the country engaged in a work stoppage this fall to protest the low, or even nonexistent, wages that incarcerated people are paid for their work. The country’s largest-ever prisoner strike now seems to have disintegrated, with their demands unmet.

The most likely reason why the strike failed is that the prisoners are protesting the wrong thing. In trying to define prison labor as slavery, they’ve ignored the fact that it technically isn’t employment, either. Redefining prison labor as legal employment could reform the system in meaningful and lasting ways, more effectively than trying to convince people that it’s slavery.

Certainly, prison labor walks and quacks like slavery. The Prison Policy Initiative found that the average inmate’s wage is 93 cents an hour — and can go as low as 16 cents — when they’re employed by private companies that use prison labor. I was a correctional laborer for almost six years, working in a prison kitchen. After deductions, I earned between $5.25 and $8.75 per week.

As someone with intimate knowledge of the system, I know that prison labor is mostly misunderstood by the public. The first misconception is that all prison labor is the same. In fact, there are two types of prison jobs. First, there are ones like mine, where inmates work for the prison, and the employer — the government — doesn’t make a profit per se off prisoners’ backs, though it holds down expenses by paying little or nothing to get essential tasks done.

Then there are jobs under the Prison Industry Enhancement (PIE) program, in which inmates are employed by a private business that has contracted with local correctional authorities for low-cost labor. This second type of jobs holds much more potential for reform in ways that will help inmates.

All contracts between private companies and prisons for inmate labor must abide by PIE program rules, as established under the Percy Amendment to the Justice Improvement Act. Championed by Senator Charles Percy (R., Ill.), who had just seen how idleness became deadly in the 1978 Pontiac prison riot, the law and the PIE program require private companies that use prison labor to pay inmates the prevailing minimum wage.

In addition to the minimum wage, other conditions imposed by the Percy Amendment are that local labor-union officials must be consulted, and must agree that local non-convict labor is unaffected, and that goods produced in the prison must be from an industry that isn’t experiencing local unemployment.

Of all the unions in the United States, only the IWW supported the recent prisoner strike. Other groups in the AFL-CIO kept mum, because this kind of slavery gets their blessing.

If union bosses approve of the minimum-wage setup for the PIE program, why are inmates’ wages so low? The net wages earned by inmates skim the surface of slavery because many deductions — “LFOs,” or legal financial obligations, such as taxes, restitution, room and board, and other costs associated with the prisoner’s criminal processing and incarceration, which the prisoner can be made to repay — can eat away as much as 80 percent of a prisoner’s paycheck.

Whether theses deductions are used wisely by the state governments that collect them is debatable. Taking 80 percent of someone’s pay seems excessive and unreasonable; even court orders to garnish wages don’t go that far.

What isn’t up for discussion is the fact that a PIE employer already pays minimum wage for inmates. No wonder the strike achieved little; prisoners were demanding what they already get, at least in terms of what employers pay per hour.

But just because the fight for minimum wage for prisoners was won years ago by a federal statute — one that actually doesn’t benefit inmates much at all — doesn’t mean that hope for reform, or at least more satisfied correctional populations, is lost.

The most obvious solution to low wages for prisoners is to reform the regulations governing LFOs and how much can be taken from inmate pay. The likelihood of this happening is low; policies that soak justice-involved people are politically popular because they appear to alleviate people’s tax burdens.

Although private businesses in the PIE program are required to adhere to wage laws, they are exempted from certain sections of the tax code, namely unemployment taxes. They can get away with this because Section 26 U.S.C. 3306(c)(21) of the tax code states that any service performed in a penal institution isn’t considered employment. To a former prison laborer like me, this definition is much more dehumanizing than any low wage. This law tells an inmate that what she does at her prison job doesn’t matter, regardless of what she’s paid. It’s one thing to be devalued; it’s another to be denied outright. That’s what this exemption does to all of the reliable, invaluable services that inmates provide to others.

If prisoners’ work were defined as employment in the nation’s tax code and companies in the PIE program were required to pay unemployment taxes, returning citizens could file claims for unemployment benefits when they left prison and improve their chances at success in society.

Increasing a released prisoner’s access to cash reduced the first-day recidivism to zero, with no increase in crime later.

Of prisoners who recidivate within five years of their release, 37 percent get arrested within six months. Researchers studying “first-day recidivism” and the amount of “gate money” provided to discharging inmates have found that reducing “liquidity constraints” on discharged prisoners (i.e. giving them more cash) helps them avoid reoffending.

In fact, increasing a returning citizen’s access to cash reduced the first-day recidivism to zero, with no increase in crime later. Unemployment checks — benefits that an inmate has already earned, as opposed to the various entitlement programs that we use in place of meaningful job training and placement for people leaving custody — could buoy reentrants who are assimilating into society until they find a job.

Of course, redefining prison labor would increase costs for companies participating in the PIE program, perhaps enough to make these jobs go away entirely when the company has to lay out even more money to pay unemployment taxes. Yet I think many businesses won’t quit over this increased cost. Some of them already pay a federal unemployment tax for prison employees, even though they aren’t required to do so. It’s unlikely that an increased cost will deter companies from employing prisoners, since participation in the PIE program has advantages beyond what they pay, namely a captive and pliable workforce.

Imagine how much more recidivism could be reduced if these private companies were forced to acknowledge their incarcerated workers as employees — and pay the tax associated with hiring people and having them work for the company. It’s a much more likely scenario than getting anyone to admit that prison labor is slavery, and it could have a positive impact on incarcerated people’s lives where it really counts — outside the prison, where 95 percent of inmates will end up one day.

Of course, defining prison labor as employment wouldn’t have helped workers like me, whose midget pay stubs were never large enough to qualify for unemployment insurance, or inmate workers in places like Texas and Arkansas, where they are paid literally nothing. That’s pure slavery, untempered by union officials’ willful neglect.

Even if we raise the low and absent wages of certain prisoners, those payments will get chipped away by LFOs, just as they do for other prisoners who earn minimum wage from private companies. The only other option is to dismantle the entire prison labor system — which is ostensibly the goal of pleas to repeal the clause of the 13th Amendment that allows forced convict labor — and what will that accomplish?

Some people argue that letting inmates escape work requirements will free them to engage in more rehabilitative programming. I know from experience that prisoners are already required to leave their jobs for these self-help groups. It’s not as if a working prisoner can’t access rehabilitative assistance.

And that rehabilitative programming — school or group therapy — is being taken advantage of by many inmates. Hard statistics on the number of inmate laborers are difficult to obtain, but only an estimated 900,000 of our nation’s 2.3 million people in correctional facilities work within them. Excluding the 80,000 people held in solitary confinement, who aren’t allowed to work, that leaves about 1.3 million who found the freedom do something other than work behind bars.

At their root, prison labor problems aren’t always economic. What inmates are saying when they complain that prison labor is slavery is that they feel undervalued and dehumanized. This most recent prisoner strike was about mattering to others as equals, as people, and not being seen as lifeless targets for exploitation. Once people feel like they count — as more than just names on a population sheet — complaints about prison labor won’t necessarily abate, but they will change, and incarcerated people will start demanding the reforms that can actually help them.

Getting Congress to amend the tax code and define even unpaid prison labor as employment in the coming session would trade the language of oppression — calling what inmates do slavery — for the language of power — calling their activity employment — and change prisoners’ mindsets and views of themselves. In addition to changing prisoners’ self-concept, allowing them to collect unemployment benefits can change their ability to support themselves when they leave custody and help them remain law-abiding and free.


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