Will Altering the 13th Amendment Bring Liberation to the Incarcerated 2.3 Million?

Part of the Series

Bringing Down the New Jim Crow

Though precise figures are difficult to find, likely about half of the 1.3 million incarcerated workers do labor that maintains prison institutions themselves. Without this labor, prisons could not function, yet they are poorly paid and often don’t amount to serious employment. (Photo: Justin Sullivan / Getty Images)

High school students typically learn at least one “fact” about slavery: The 13th Amendment did away with it all. As usual, school history teaches a half truth. Like most promises of freedom, the 13th Amendment came with a catch, an exclusion clause that permitted both slavery and involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.”

This “exception clause” drew considerable attention in anti-slavery circles in the decades immediately following the Emancipation Proclamation but then largely faded into the background. Even through the last several decades of mass incarceration, few people other than a handful of scholars have paid much attention to what historian Dennis Childs calls the “constitutional sanctioning of state-borne prison-industrial genocide.”

However, in the past year, abolishing the slavery clause of the 13th has become a cause célèbre. The prison labor strike of fall 2016 brought the issue to the fore. Led by members of the Free Alabama Movement (FAM) inside Holman prison, this action sparked a withdrawal of labor that some analysts say spread to as many as 29 prisons in 12 states. Kinetik Justice, the most prominent leader of FAM, explained the motivation of the strike: “We understand the prison system is a continuation of the slave system…. The 13th Amendment abolished slavery supposedly but created it again in the next breath, because it birthed the criminal justice system … the institution of slavery with a $1,000 suit on.”

Since the FAM-led strike, resistance in several prisons has kept questions of labor behind the walls in the public eye. Moreover, work stoppages and hunger strikes have occurred in a number of immigration jails in the Northwest and Southwest.

Like the FAM-led strike, much of this resistance in immigration detention centers has focused on exploitation of labor. In an interesting twist on the exception-clause argument, those detained while awaiting results of an immigration proceeding reason that they cannot be compelled to work because they have not been convicted of any crime, thereby absolving them from any application of the 13th amendment.

In 2014, a suit against this practice was filed on behalf of nine individuals detained at the immigration facility in Aurora, Colorado, owned by the private prison company GEO Group. In March of this year, a Denver judge upgraded the suit to class action status. It now includes some 60,000 men and women held at Aurora over the years. The litigation claims those detained were subjected to “forced labor” when they were selected for a daily roster to carry out cleaning duties at the facility and paid $1 per day. The argument holds that this amounts to virtual slavery under Trafficking Victims Protection Act. GEO Group’s argument held that the labor fell under ICE’s Voluntary Work Program, and people signed up of their own volition.

Apart from actions behind bars, the highly acclaimed film, 13th, has brought the exclusion clause to the attention of millions of activists and ordinary people. The film, directed by Ava DuVernay and nominated for an Academy Award, traces the historical roots of mass incarceration back to the period of chattel slavery.

The focus on the 13th Amendment will once again take center stage in the “Millions for Prisoners Human Rights March” in Washington, DC, on August 19. Nonprofit human rights organization IamWE and a long list of co-sponsors are the organizers. The core demand of the marchers is a congressional hearing focused on the 13th amendment and its “direct links” to various aspects of mass incarceration, including exploitation of labor, profiteering by private prison operators, the implementation of quotas for immigration detention, and racial disparities in prison populations and police violence.

Mallah-Divine Mallah, a member of the national organizing committee for the march, says the action intends to “galvanize” the movement at a national level. He told Truthout that there are lots of local struggles but nothing putting the light on the “diabolical aspect” of the prison system across the country, including labor exploitation.

Prison Labor: A Case of Superexploitation

Without a doubt, prison pay rates are appallingly low. A recent study of prison wages by Prison Policy Initiative’s Wendy Sawyer revealed that prison pay levels have actually declined nationally since 2001. She found that the average minimum daily wage paid to incarcerated workers for those who do basic maintenance work in the prison is now 86 cents, down from the 93 cents reported in 2001, with maximum daily wages falling from $4.73 in 2001 to $3.45 today. Moreover, six states — Alabama, Arkansas, Georgia, Mississippi, South Carolina and Texas — pay no wage at all for basic maintenance work. Louisiana, Missouri and West Virginia pay many such workers less than five cents an hour. Heather Ann Thompson, author of the prize-winning tale of the Attica prison rebellion, Blood in the Water, views these wage levels much like Kinetik Justice, saying, “It’s absolutely fair to characterize it as slave labor, since constitutionally that is the only exception made for keeping people in a state of slavery.”

Mallah, who spent over a decade behind bars himself, adds a further dimension to the nature of enslavement behind bars: coercion. He notes that prison authorities have various forms of leverage to force people to work. Refusing to report to a job may land a person in solitary confinement; result in the elimination of their access to commissary, phones and visiting; and potentially adding time to their sentence.

Lacino Hamilton, a captive in the Michigan State Department of Corrections for 23 years, agrees, “The motive for work in prison is seldom induced by reward, but by threat of certain punishment: Not working results in mind-numbing and humiliating restrictions, in an already restrictive environment.”

The coercion element has heightened in recent years as people are increasingly charged for services. Incarcerated people are now often charged co-pays for health care, eyeglasses and wheelchairs, and they are also contending with decreases in clothing and food allocations that force them to buy overpriced goods through the commissary. Moreover, restitution and crime victims’ funds often garnish a considerable share of prison wages. Sawyer says, in some instances these deductions from paychecks reach as high as 80 percent.

While money is central in this equation, Hamilton maintains that prison labor exploitation is also about the politics of power. He told Truthout via email that “prison work is designed to train and prepare imprisoned people for the unrewarding work awaiting most of them (us) upon release. It’s designed to condition imprisoned men and women to accept the official or societal view that they are meant to be the permanent underclass. So, when the department requires that all prisoners maintain a ‘routine work assignment,’ it’s to program prisoners to become someone whose energy and labor is always at the disposal of higher ups.”

The fall in wages has also gone hand-in-hand with slashing the budgets of education and other activities. Political prisoner David Gilbert, who has spent over 30 years in New York state prisons, wrote to Truthout about how in the past there was a “range of activities where prisoners could feel like they were accomplishing something, feel good about themselves.” These have for the most part disappeared, along with what he calls “the program which is by far the most beneficial — college.” Nationally, the number of in-prison college programs has dropped from over 350 in the early 1990s to less than a hundred today. A study by the New York State Bar Association showed that the number of college degrees awarded to people in the state’s prisons fell from 1,078 in 1991 to 141 in 2011.

This reshaping of the prison landscape has gradually eliminated most of the rehabilitation-oriented programs, leaving menial jobs and dead time. As Gilbert put it, “For the vast majority there’s a tremendous amount of idleness, at times combined with the demeaning treatment from staff.”

Changing the 13th Amendment: Implications

For the moment, a key question is, to what extent the removal of the exception clause would address these issues. There is a wide range of views on this matter. Mobilization materials distributed by organizers state, “At a minimum, we expect to have an immediate impact on mass incarceration laws.” Azzurra Crispino, who was a major spokesperson for supporters of the 2016 FAM strike and currently heads Prison Abolition Prisoner Support, believes such impact would be decisive and swift. She told Truthout that the removal of the exception clause would force prison authorities to respect the whole gamut of labor laws they are now free to ignore — minimum wage, pensions, health and safety regulations. “This would immediately make the prison system unaffordable,” she contends. She predicted that within a year the prison population could shrink by up to 70 percent.

Though less optimistic than Crispino, Mallah also sees the potential in modifying the amendment. “The captured market aspect would be changed.” In his view, there would be an “impact on the quality of interaction between the people who are incarcerated and those they work for.” He sees altering the amendment as a way to “galvanize people,” to address the reality that “nobody cares about slaves, nobody cares about prisoners.”

However, some activists, legal scholars and economists are more skeptical about the impact of removing the exclusion clause. While the clause constitutes the major overarching framework enabling authorities to exempt incarcerated people from labor laws, other legal measures also facilitate prison slave labor. Court decisions and legislation have also excluded people in prison from categorization as employees. A number of cases pertaining to the Fair Labor Standards Act (FLSA) have upheld this exclusion. In one instance, a claim for coverage under FLSA argued that if Congress wanted to exempt people in prison from the terms of the act, they would have specifically mentioned them. The Seventh Circuit court’s explanation in denying the appeal was that “the reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress.” While not employing exactly the same logic, a number of cases have upheld the right of government and nonprofit sector employers to hire interns without paying them a wage, largely under the theory that an internship is volunteer work, not requiring payment.

Section 26 U.S.C. 3306(c)(21) of the tax code reiterates the FLSA decisions, noting that any service performed in a penal institution isn’t considered employment. Chandra Bozelko, who spent seven years in prison, emphasizes that, like the 13th Amendment, these laws are yet another way in which people in prison are dehumanized by the labor regime: “this definition is much more dehumanizing than any low wage,” she claimed in a recent article in National Review, “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.”

Moreover, Steven Pitts, the associate chair of the UC Berkeley Labor Center, sees a reflection of the increasingly precarious nature of work in prison labor regimes. In his view, the 13th Amendment is not “the legal vehicle that keeps people from being classified as an employee.” Rather, he contends that over the past 40 years, the line between employer and employee has become less and less clear, with many employees being redefined as consultants or independent contractors. At present, he maintains there is “always a problem applying basic labor law that assumes a clear line between employer and employee.” The blurring of this line has enabled employers to hire “workers” or “associates” for a flat rate and exclude them from benefits like retirement pay, paid holidays and job security.

Who Do People in Prison Work For?

Assessing the application of the exclusion clause raises the question of who actually employs people in prison. Despite popular notions that incarcerated workers primarily generate profits for major corporations, less than 1 percent of those in prison are under contract to private companies. According to federal law, any firm contracting for prison labor to produce goods to be sold to the public must register with the Prison Industry Enhancement Certification Program (PIECP). According to the PIECP’s first quarter report for 2017, 5,588 incarcerated individuals were under contract to companies, most of them small firms. These are generally the best-paid jobs in prisons and according to the letter of the law, are supposed to pay the legal minimum wage. For economist Tom Petersik, who has been studying prison labor for nearly two decades, these workers who do jobs resembling production work on the streets, hold the key to resolving prison labor issues. He recommends applying the overall rules of the labor market to this cohort but not to all workers in prison. Moreover, he further cautioned in correspondence with Truthout that the Amendment only applies to people who have been convicted, exempting those awaiting trial, but also opening the door to applying the clause to individuals who have completed prison or jail terms.

Two other categories of work occupy the vast majority of those employed in prison. According to Sawyer, about 6 percent of people in prison produce goods and services for government entities. This ranges from the stereotypical license-plate-making to building communications boxes for the Department of Defense to producing mattresses or uniforms for prisons. Several states along with the Federal government have separate entities that oversee these enterprises. The federal government’s prison industrial overseer, Federal Prison Industries, Inc., (also known as UNICOR) reports that its largest single production item in 2015 was office furniture, most of which went to government buildings.

While much prison labor may be akin to factory work outside prison, a significant portion of prison workers are engaged in agriculture. Prison farms, highly reminiscent of plantations from the chattel slavery days, complete with armed guards on horseback, are mostly located in the South. Prisons like Mississippi’s Parchman Farms (made famous in a song by blues legend Bukka White) and Angola in Louisiana have gained notoriety for oppressive conditions in agricultural fields. Holman in Alabama, the focal point of the Free Alabama Movement, also has considerable agricultural production. While most of this produce ends up being consumed in prison dining halls, more recently stricter immigration laws that reduced the flow of migrant farm laborers have led to the deployment of people in prison in Georgia and Idaho to harvest crops for commercial farms.

Though precise figures are difficult to find, likely about half of the 1.3 million incarcerated workers do labor that maintains prison institutions themselves. This includes cleaning, cooking, general maintenance and a variety of office tasks. These are the most poorly paid jobs. Without this labor, prisons could not function. As Crispino points out, if Departments of Corrections had to pay these workers a minimum wage with basic benefits, they would go broke in a hurry. Yet, as Sawyer notes, few of these jobs really amount to serious employment. They might involve sweeping floors for an hour a day or serving food for a couple of hours. Even for those who do work, the days are far from full.

Moreover, Hamilton stresses that rather than physically grueling labor routines, the “real harm” lying in these jobs is that the “prisoner’s sense of self and sense of possession become alienated from his or her work capacity. That’s what’s really at stake here.”

Lastly, there is an entire layer of people in prison who do not work at all. This includes the roughly 90,000 people in solitary confinement, virtually all of the nation’s political prisoners, as well as those who are disabled or beyond working age. Former political prisoner Cisco Torres sees mobilization around eliminating the exclusion clause as viable but thinks political energy could be better spent on issues like sentencing or reducing financing for local police. He fears that even if the exclusion clause is removed, “they will come up with different methods of incarceration.”

Additionally, Torres stresses that decarceration without allocating additional resources to oppressed communities condemns people released from prison to live at the absolute margins of survival. “Even if we let them go, where do these people go?” he says. His views also highlight the fact that amending the 13th could lead to some relief for people in prison but may do very little for the millions of loved ones of incarcerated people, overwhelmingly women and children, who have also been critically impacted by mass incarceration. For the moment, Torres favors mobilizing behind “tangible goals,” like the treatment of incarcerated people or the recognition of political prisoners. For him, the central problem is “American capitalism and how we fight it,” not merely amending the Constitution.

Hamilton agrees with Torres’ assessment: “Such a demand may be a great way to raise awareness about interlinked systems of marginalization, policing and imprisonment, but it would not prevent imprisonment from being the primary mode of state-inflicted punishment. Not one prisoner would go free.”

Linking the 13th Amendment to Other Issues

Despite the complexity of assessing its impact, building a movement to abolish the exclusion clause would be a major step in changing public attitudes about incarcerated people. Moreover, the broadening of the demands to include the elimination of immigration detention quotas acknowledges that forced labor is a carceral reality well beyond the boundaries of the plantation-style farms of Holman and Parchman.

In addition, as Mallah has stressed, it would reshape consciousness and relations at the coalface of prison yard relations. He regards the march and the focus on the 13th as an effort to capture the “synergy of both national coalition and local” efforts as a key moment in the search to find the balance between marching, advocacy and education that is central to building a movement to end mass incarceration.