Washington Lawyer - March/April 2025 - 11

FEATURE
slavery and involuntary servitude would be an important step in establishing
fair pay and safe working conditions for incarcerated workers.
In the absence of federal action, some states have amended their own
constitutions to forbid slavery and involuntary servitude without qualification.
Rhode Island was ahead of the curve, having fully abolished slavery
even prior to the passage of the 13th Amendment in 1865. Recently,
other states have begun to follow suit. Colorado eliminated involuntary
servitude in 2018, followed by Utah and Nebraska in 2020 and Alabama,
Oregon, Tennessee, and Vermont in 2022.
In 2024 Nevada voted to eliminate slavery exceptions, although it pays
incarcerated workers nothing. California voters, on the other hand, rejected
Proposition 6, which sought to amend the state's constitution to
ban forced prison labor (the slavery exemption was removed in 1974).
Governor Gavin Newsom's administration opposed the bill, warning that
it could cost taxpayers billions of dollars if the state were to pay its prisoners
the $16 hourly minimum wage.
SCOPE AND SCALE
The scale of prison labor is undeniable, a factor that impedes efforts to
eliminate the practice. According to the Bureau of Justice Statistics, the
U.S. prison population stood at 1.2 million at the end of 2022. An estimated
65 percent of the prison population
(about 791,500 people) work, according
to Captive Labor: Exploitation of Incarcerated
Workers, a 2022 report by the ACLU
and the Global Human Rights Clinic
(GHRC) at the University of Chicago Law
School examining the use of prison labor
throughout state and federal prisons
in the United States.
The average minimum hourly wage
was 13 cents and the average maximum
was 52 cents, though many inmates
were paid significantly less, the
report shows.
Prisoners in Alabama, Arkansas, Florida,
Georgia, Mississippi, South Carolina, and
Texas received no compensation for the
vast majority of work assignments. For
example, the report indicates that in
2019, only 80 Texas prisoners who were
employed by private companies were
paid a wage. Rhode Island, despite its
longstanding prohibition on slavery
and involuntary servitude, pays incarcerated workers between 50 cents
and $3 a day for their labor.
" One person had to clean blood with their bare hands. Another incarcerated
person, in California, was manufacturing glasses for a medical supplier
without the proper protective equipment. She would get burned
every time she made the glasses. Basic OSHA protections would have
prevented various injuries, " says Mariana Olaizola Rosenblat, policy advisor
on technology and law at the New York University Stern Center for
Business and Human Rights. Olaizola Rosenblat was one of the GHRC
fellows responsible for researching and drafting the ACLU report.
The government and private industry benefit greatly from the unpaid
and underpaid labor of the incarcerated. In 2021 incarcerated workers employed
in prison industries programs produced more than $2 billion worth
of goods and commodities and $9 billion in services to maintain the penal
facilities where they were being held. Prisoners fought wildfires in California,
Washington, and Nevada, and they worked on former slave plantations
and slaughterhouses supplying McDonald's, Walmart, and Cargill, paid at a
fraction of the cost of sourcing labor from the community.
ECONOMIC CONSIDERATIONS
The obvious hurdle in eliminating slavery and involuntary servitude is
the expense. For instance, in 2019 the Florida Department of Corrections
estimated the labor value of the 3,500 unpaid prisoners on state road
Inmates debone turkeys at the meat plant within the Maryland Correctional Institution on November 18, 2019,
in Hagerstown, Maryland. Ricky Carioti/The Washington Post via Getty Images
Notwithstanding the lack of pay, prisoners face another source of inequity:
workplace safety. The ACLU report notes improper equipment as well
as " inadequate training on how to handle hazardous chemicals, operate
dangerous equipment with cutting blades, clean biohazardous materials
... and use dangerous kitchen equipment. " Occupational Safety and
Health Administration (OSHA) standards do not typically apply to incarcerated
workers because they are not considered employees.
crews and community work squads to be about $147.5 million over a
five-year period, according to the ACLU report.
" There's no way we can take care of our facilities, our roads, our ditches,
if we didn't have inmate labor, " Warren Yeager, a former Gulf County,
Florida, commissioner, told the Florida Times-Union.
Economist Stephen Bronars disagrees. In January 2024, Bronars published
A Cost-Benefit Analysis: The Impact of Ending Slavery and Involuntary Servitude
as Criminal Punishment and Paying Incarcerated Workers Fair Wages,
MARCH/APRIL 2025 * WASHINGTON LAWYER 11

Washington Lawyer - March/April 2025

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