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Bloody Lucre - Carceral Labor and Prison Profit

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BLOODY LUCRE: CARCERAL LABOR AND PRISON PROFIT
Laura I Appleman1
The pursuit of profit is inextricably intertwined with America’s system of carceral labor
and criminal punishment. Along with the institution of slavery, the harnessing of involuntary
carceral labor yielded enormous proceeds through transformation of human toil into financial gain.
Profit incentives have exerted a profound influence on the shape of American carceral labor. From
16th-century British convict transportation to 21st-century private corrections companies, profitable
returns from involuntary carceral servitude have been an important feature of criminal
punishment.
This Article traces the coruscating power of the private profit motive within the criminal
justice system, one of the first to chart the ways this focus on revenues has shaped the forced toil
of those under correctional control. By thoroughly evaluating our carceral history, and dissecting
the financial currents that have shaped the many forms of involuntary inmate servitude, we will be
better able to disentangle how money has influenced and warped our system into one of mass
incarceration. Moreover, a full understanding of our carceral past could help us begin to rechart
the course of modern criminal justice, eliminating this kind of involuntary servitude in our system.

1
© Laura I Appleman 2021. Van Winkle Melton Professor of Law & University Research Integrity Officer,
Willamette University. J.D., Yale University; B.A., M.A., Univ. of Penn. Many thanks to David Friedman, Brian
Highsmith, Kirsten Parsons, Judith Resnik, Kate Weisburd, and the participants in the YLS Public Finance in Criminal
Justice Series for their thoughts and comments, and Willamette for its research support.

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Table of Contents
Introduction: “Follow The Money And See Where It Goes” .......................................................... 3
I: The Early Prison As Maker Of Monies And Men ..................................................................... 5
A. Transportation ........................................................................................................................ 5
B. Workhouses and Jails ............................................................................................................. 7
C. The Industrial Prison ............................................................................................................ 9
II: Postbellum Carceral Labor ...................................................................................................... 11
A. The South . .......................................................................................................................... 11
1. Black Codes and Convict Leasing .................................................................................... 11
2. Debt Peonage .................................................................................................................... 18
3. Chain Gangs ..................................................................................................................... 21
4. Penal Farms ...................................................................................................................... 24
B. The North. ............................................................................................................................ 28
C. Prison Labor For, and By, the Government ........................................................................ 30
III: 21st-Century Prison Labor: Modern Profiteering .................................................................. 33
A. Cleaning Up Natural Disasters ........................................................................................... 33
B. Profit for Profit’s Sake ........................................................................................................ 38
C. Food Harvest and Production.............................................................................................. 39
D. State-run “Independent” Correctional Industries............................................................... 42
IV: How The Law Helps Maintain Profit In Carceral Punishment .............................................. 44
A. Classification Of Inmate Workers ...................................................................................... 44
1. Internal Revenue Service classifications ........................................................................... 45
2. Fair Labor Standards Act classifications ........................................................................... 46
3. OSHA, the Toxic Substances Control Act, and the Clean Air Act ................................... 47
B. Funding Private Businesses in Prisons ............................................................................... 47
1. Banks Floating Private Prison Industries........................................................................... 47
2. Investment and Mutual Funds Supporting Prison Labor ................................................... 48
V: Solutions, Regulatory and Otherwise ..................................................................................... 50
A. Regulation and Lawsuits ....................................................................................................... 50
1. Regulatory Power .............................................................................................................. 50
2. Lawsuits by Prisoners ........................................................................................................ 50
B. Abolishing Constitutional Slavery and Involuntary Servitude ............................................ 52
1. Federal Abolition Amendment ........................................................................................ 52
2. Amending State Constitutions ......................................................................................... 52
C. Divesting from Private Prisons and Private Industry in Prisons ........................................... 55
D. Banking Industry Withdrawal from Private Prison Companies……………………………57
1. Growing Banking Refusal to Fund Private Prison Companies ........................................ 55
2. Banks Supporting the Released…………………………………………………………58
3. Eliminating Private Profit from the Carceral World……………………………………58
Conclusion: Stripping Profits out of Carceral Punishment .......................................................... 57

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Introduction: “Follow the Money and See Where It Goes”2
The profit motive is inextricably intertwined with America’s system of carceral labor and
criminal punishment. Profit incentives have exerted a profound influence on the shape of
American carceral labor. This dynamic has held fast through slavery, Reconstruction, the Industrial
Revolution, the Great Depression, and the Great Society, continuing through today. The profit
motive surfaces in all forms of detention through U.S. history, not only for the convicted but also
for the disabled and those who are not citizens.
If profits are a major motivator of American mass incarceration, then carceral labor is one
of the primary engines driving the entire enterprise. Along with the institution of slavery,
involuntary carceral labor created huge return by transforming human toil into monetary gain.
From 16th century British convict transportation to 21st century private corrections companies,
involuntary carceral servitude has been a feature of criminal punishment, always with an eye
towards revenue. This Article traces the coruscating power effect of profits within the criminal
justice system, charting the ways this focus on revenues has shaped the forced toil of those under
correctional control.
From a citizen’s first interaction with the justice system through their release into the
community, profit-seeking is embedded in our modern carceral machine. This particularly
American motivation can be tied, in part, to deep-rooted eugenic beliefs still informing our carceral
system. For centuries, society has judged those who can work, or produce, as genetically superior
to those who cannot. This belief system undergirds the criminal justice system as well. The Puritan
work ethic remains a motivator of criminal process, finding its apogee in involuntary carceral
labor: everyone must produce, even while under correctional control. In many ways, our modern
version of eugenically-driven incarceration3 is transparent, in that today’s criminal punishment is
sold to private businesses as a way of extracting profit from so-called unproductive “undesirables,”
through the process of obligatory work.
This Article is the first piece of scholarship to comprehensively detail and trace the role of
money-making in carceral labor apart from slavery, from the early colonial period through our
current time. By thoroughly evaluating our carceral history, and dissecting the financial currents
that have shaped the many forms of required inmate labor, we will be better able to disentangle
another way lucre influences our system of mass incarceration. Moreover, a full understanding of
our carceral past will help us begin to rechart the course of modern criminal justice, hopefully
eliminating this kind of involuntary servitude for good.
The Article proceeds in five parts. Part I details the history of early colonial and American
criminal justice, explaining how beginning with the British arrival, profits were always associated
with imprisonment, quickly becoming enmeshed with carceral labor, which was thought to
improve men in both body and soul. Part I then moves to the development of early 19th-century
2

Lin-Manuel Miranda, Washington on Your Side, HAMILTON: THE REVOLUTION 200 (2016).
See generally Laura I Appleman, Deviancy, Dependency, & Disability: The Forgotten History of Eugenics and
Mass Incarceration, 68 DUKE L. J. 417 (2018).
.
3

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industrial prisons, which were the first to make carceral labor the primary focus of incarceration,
to better extract revenue out of the incarcerated.
Part II carefully examines the two very different trajectories between the North and South
in post-Civil War carceral labor. The Article contends that in the South, the entrapment of many
Black citizens into carceral bondage was equally a function of profit-making as virulent racism.
Although many standard histories conclude that the brutal regime of Southern carceral labor ended
with convict leasing, the Article additionally explores how these practices simply continued under
other names, including the chain gang, debt peonage, and penal farms. This comprehensively
analyzes the entirety of such servitude through the lens of profit. In doing so, it finds that the
South’s postbellum utilization of deadly carceral labor practices was motivated by a unaltering
focus on money-making, demanded by the state, the county, the criminal justice system, and
innumerable private industries.
Part II additionally scrutinizes the concomitant transformation of Northern penal
institutions into more modern sites of commerce, relying upon carceral labor to do so. It looks in
particular at the growing emphasis on inmate “hard labor,” as well as the increasing federal and
state interest on extracting revenues from prisons instead of investing in them.
Part III investigates modern day carceral labor practices in prisons, jails, and alternative
correction sites, finding that most inmate work is still designed to create revenues for both
government agencies and private businesses, with little thought or focus on the incarcerated
persons themselves. Part III also details how modern-day carceral labor, although less overtly
racist and lethal, still exploits the incarcerated for maximum profits.
Part IV analyses the many complicated ways that the law assists in making corrections a
revenue-creating enterprise, including federal labor laws, social security regulation, tax laws,
OSHA, and the Clean Air Act. In addition, Part IV also looks at how the banking industry helps
prop up many private companies profiting from inmate labor, making it possible for these
businesses to thrive.
Finally, Part V focuses on potential solutions for the carceral labor situation as it currently
exists, highlighting the national movement to revise the 13th Amendment to eliminate slavery in
all aspect, state abolition amendments, minimum wage floors, and divestment from companies
using carceral labor. All of these solutions point to one ultimate answer: the necessity of
eliminating involuntary carceral servitude.
The connection between money, crime, and punishment has a long and sordid history in
Anglo-American legal culture.4 “Moral hazards abound”5 when we allow profits to dictate
criminal punishment, particularly when that punishment requires forced carceral toil for the benefit
of state and private industry. It is past time to break the chain of compulsory labor for incarcerated
individuals, giving them choice, fair wages, and dignity. Eliminating this last vestige of slavery
and involuntary servitude is a crucial step in making the world of criminal justice more just.
4

See Jeffrey Fagan & Elliott Ash, New Policing, New Segregation: From Ferguson to New York, 106 GEO. L.J. O.
33, 42 (2017).
5
Lan Cao, Made in the USA: Race, Trade, and Prison Labor, 43 N.Y.U. REV. L. & SOC. CHANGE 1, 4 (2019).

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Part I: The Early Prison as Maker of Monies and Men
The twin motivators of making money and transforming “undesirable” British citizens into
hard-working colonials, fueled the settlement and development of the American colony. The
colonization of North America was undergirded by a belief system rooted in rigid class and
heredity distinctions.6 These strict hierarchies reflected a landowner class belief in a permanent
lower class, considered true bottom societal layer.7 From the outset, the American colonies were
envisioned as “a place where the surplus poor, the waste people of England, could be converted
into economic assets.”8
Indeed, the New World, not just Australia, was imagined by British elites as an immense
uncultivated terrain perfect for re-settling England’s poor, homeless, and lawbreakers, the “waste
people” who were the dregs of society.9 By forcibly dispatching their destitute, lawbreaking, and
developmentally disabled to the North American continent,10 the British expressed their vision of
colonial America as “one giant workhouse.”11 Not only would transporting these “undesirables”
rid them from England, but America would also provide a space to, at best, transform them into
productive workers.12 In a colonial society that valorized hard work, good breeding, and
productivity, those who could not contribute by working were doomed to a lifetime of being
contained, separated, and controlled.13
A. Transportation
The exiling of British citizens for purposes of criminal punishment and carceral labor began
as early as 1606, dovetailing with the Virginia colony’s need for bodies to work the land.14 Using
convicts for such purposes not only allowed the American colonies to thrive and produce revenue,
but also provided, in the eyes of the Crown, a tidy and convenient way to deter future criminals.15
The poor were also transported, a group that included children, the homeless, and the disorderly.16
From the very beginning, hard labor, profit and punishment were linked.

6

Appleman, Deviancy, at 425.
See NANCY ISENBERG, WHITE TRASH: THE 400 YEAR-OLD UNTOLD HISTORY OF CLASS IN AMERICA 102 (2016).
8
ID. at 121.
9
Id..
10
See generally J. M. BEATTIE, CRIME AND THE COURTS IN ENGLAND, 1660-1800 (1986) (discussing British
transportation prior to 1718 Transportation Act).
11
Isenberg at 21.
12
Id.
13
Appleman, Deviancy, at 426.
14
See PETER WILSON COLDHAM, EMIGRANTS IN CHAINS: A SOCIAL HISTORY OF FORCED EMIGRATION TO THE
AMERICAS OF FELONS, DESTITUTE CHILDREN, POLITICAL AND RELIGIOUS NON-CONFORMISTS, VAGABONDS, BEGGARS
AND OTHER UNDESIRABLES, 1607-1776, 41 (1992).
15
See, e.g., ACTS OF THE PRIVY COUNCIL OF JAMES I, vol. 2 (London, 1925), which noted that convicted felons with
“able bodies fit for labor may be usefully employed for the great benefit and service of the commonwealth, and to that
end maybe constrained to toil in such heavy and painful works, as such a servitude shall be a greater terror to them
than death itself, and therefore a better example since executions are so common as that wicked and irreligious sorts
of people are no way thereby moved by them.” Id. at 23.
16
See Joanna Innes, Prisons for the Poor: English Bridewells, 1555-1800, in DOUGLAS HAY & FRANCIS SNYDER,
EDS., LABOUR, LAW AND CRIME: AN HISTORICAL PERSPECTIVE (1987).
7

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In 1718, Britain passed the Transportation Act,17 formalizing the country’s ability to banish
convicted felons to their colonies.18 In lieu of physical punishment or execution, felons were
sentenced to 7 or 14 years hard labor.19 Merchant entrepreneurs charged the Crown five pounds
per prisoner for transport.20 This compensation, however, did not yield enough profit to induce
commercial businesses into shipping the convicted in large enough numbers, so Parliament granted
contractors “property and interest in the service” of the men during their sentence of hard labor.21
A majority of these convicts were then “sold” to various private masters for the length of their
labor, often to tobacco farmers, who preferred these workers to slaves.22 Between 1718 to 1775,
over 52,000 convicts were transported to the American colonies to labor on farms in Maryland and
Virginia.23
The transported convicts on board transatlantic ships were often treated as poorly as slaves;
indeed, slaves were far more economically valuable to the ship captains than were the indentured
felons.24 Upon arrival to the American colony, whichever convicts had survived the voyage were
inspected by potential buyers, with prices ranging from 10-14 pounds for men, 5-9 pounds for
women.25 Any human beings “left over” after the sale were sold in bulk at a cheap price to dealers,
who would travel from settlement to settlement selling them off.26
In this way, profit intertwined with the punishment and physical hard labor of those people
England deemed unworthy of remaining in society. By helping govern both the poor and the
criminally convicted through hard labor and banishment, transportation both helped reinforce class
differences by allowing private business to derive earnings from the forced labor of the lower
classes.
Profits from punishment greatly benefited the British merchants underwriting the
wholesale transportation of convicts and the impoverished, as the Transportation Acts of 1718 and
1720 Acts granted the exclusive right to transport convicts to merchants that contracted with the
government .27 Merchants competed with each other to bring the convicts to North America,
earning substantial proceeds.28 In many ways, this was the first major attempt to privatize and
capitalize off of criminal justice in the Anglo-American world.29

17

1717: 4 GEORGE 1 C.11: THE TRANSPORTATION ACT, located at: http://statutes.org.uk/site/the-statutes/eighteenthcentury/1717-4-george-1-c-11-the-transportation-act/
18
See Shane Bauer, 5 Ways Prisoners Were Used for Profit Throughout U.S. History, PBS (February 26, 2020),
https://www.pbs.org/newshour/arts/5-ways-prisoners-were-used-for-profit-throughout-u-s-history
19
1717: 4 George 1 c.11: The Transportation Act.
20
Id.
21
Id..
22
Id.
23
See R.J. Clarke, The Land of the “Free:” Criminal Transportation to America, THE HISTORY PRESS, located at:
https://www.thehistorypress.co.uk/articles/the-land-of-the-free-criminal-transportation-to-america/
24
Id.
25
Id.
26
Id.
27
See Farley Grubb, The Market Evaluation of Criminality: Evidence from the Auction of British Convict Labor in
America, 1767-1775, 91 AM. ECON. REV. 295, 295 (2001).
28
Id. at 295.
29
Id.

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Moreover, the use of transportation increased labor market capacity in the North American
colonies, bolstering the finances of the British government.30 Merchants were paid a subsidy to
transport the indentured across the Atlantic, and routinely would contract with local magistrates to
ship the convicted.31 This subsidy, combined with the money they would make selling the
convicts’ labor, ensured excellent returns with minimal investment.32 Thus human cargo
comprised of convicted felons was an important element of the 18th century Atlantic sea trade.33
Maryland and Virginia planters purchased a large square of the indentured, with a
sprinkling of tradesmen as well, all of whom received 7 years of indentured labor from each
contract purchased.34 Due to the growth of slavery and, in part, convict labor the tobacco trade
tripled from 1721 – 1775, when Anglo-American transportation of convicts was at its peak.35
B. Workhouses and Jails
The first jails in the American colonies simply served as holding cells to contain
the accused until trial and the convicted until punishment.36 As early as 1555, however, the British
tried to lower the expense of such incarceration by sending such prisoners to private workhouses,
where they worked to offset the cost of their confinement and helped supplement the jailer’s
salary.37 As time went on, using prisoner labor became more popular, particularly when yoked
with the idea that “confinement at productive labor [is] a means of checking vagrancy and other
evils.”38 This idea culminated with the British sending numerous convicts to the American colonies
to use as hard labor, simultaneously providing both profit and punishment.39
As early as the end of the 17th century, the northern colonies realized they could capitalize
from the labor required from wrongdoers sentenced to correctional houses as both punishment and
profit.40 For example, Pennsylvania relied on its “Great Law” of 1682,41 to formalize a tradition
of punishment through fines and hard labor,42 both of which directly benefited the colony’s
30

See Willow Meyer, Beyond the Seas: Eighteenth-Century Convict Transportation and the Widening Net of Penal
Sanctions 45, UC BERKELEY PHD DISS. PHIL. (2011), https://escholarship.org/content/qt130156k1/qt130156k1.pdf
31
Id. at 74-76.
32
Id. at 47.
33
See JOHN MCCUSKER & KENNETH MORGAN, EDS., THE EARLY MODERN ATLANTIC ECONOMY 1 (2000).
34
Meyer, id, at 51.
35
JACOB PRICE, CAPITAL AND CREDIT IN BRITISH OVERSEAS TRADE: THE VIEW FROM THE CHESAPEAKE, 1700-1776,
18 (1980)
36
See Ryan S. Marion, Prisoners for Sale: Making the Thirteenth Amendment Case Against State Private Prison
Contracts, 18 WM. & MARY BILL OF RTS. J. 213, 216 (2009).
37
Id. at 216.
38
MARTIN SELLERS, THE HISTORY AND POLITICS OF PRIVATE PRISONS: A COMPARATIVE ANALYSIS 48 (1993).
39
Marion, Prisoners for Sale, at 216.
40
See Matthew Meskell, History of Prisons in the United States from 1777 – 1877, 51 STAN. L. REV. 839 (1999).
41
What we now call Pennsylvania’s "Great Law" is a series of statutes enacted by Pennsylvania's first legislature
that met in Upland on December 4-7, 1682. The Great Law (December 7, 1682), Our Documentary History, PENN.
HIST. & MUSEUM COMM., http://www.phmc.state.pa.us/portal/communities/documents/1681-1776/great-law.html
42
Chapters 4-6, 9-16, 19-20, 24-25, 28-30, 32, and 34 of Pennsylvania’s Great Law established punishment for
crimes which specifically included fines or a term of imprisonment in “the house of Correction at hard Labour to the
behoof of the public.” Ch. 5, Great Law of Pennsylvania, at id.

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government.43 Although only Philadelphia truly used hard labor and fines as criminal punishment,
Pennsylvania’s law inspired future generations of lawmakers,44 providing a blueprint for how to
make punishment fiscally beneficial for the state. Colonial America’s experiment with long-term
confinement in prison-like institutions allowed the colonial government to profit from the labor
and monies collected, even if these weren’t always directly conceived as “punishment.”45
By approximately 1785, a variety of newly established states began to incarcerate as a form
of punishment, in local jails or houses of correction.46 As incarceration started to become the
cornerstone of criminal punishment, the organization of the prisons themselves received more
attention.47
Philadelphia’s Walnut Street Prison, remodeled between 1786 through 1794, offers one
important example of a prison that used inmate labor as a way to profit from incarceration.48 The
Walnut Street Prison model, which incorporated profitable prisoner labor, along with the ideas of
potential reform of criminals, potential crime reduction, proved so popular that it became a
prototype for prisons all over the United States, as well as an example for those abroad.49 (America
exported its entire experiment to the world, not just representative democracy.) Profiting from
inmate labor was a key aspect of this new system of punishment. Although many of these early,
labor-focused proto-prisons failed, due to overcrowding and inmate uprisings, this was likely
attributable to lack of resources,50 and not any dislike of the idea of monetizing punishment.
Inmate labor played a central role in the inauguration, spread, and persistence of early 19th
century and Jacksonian-era carceral institutions.51 As one historian recently contended,
“reformers’ ideas of social order were related more generally to solidifying particular social
hierarchies and were heavily influenced by concerns about cost and profit.”52 With the rise of a
democratic republic, there became a more pronounced need for virtuous citizens, for which
inmates provided a convenient foil.53 Additionally, many elites in Revolutionary society felt
menaced by certain elements of an emerging egalitarian society and sought to reaffirm social
distinctions while maintaining social order.54 This concern, combined with the need to enforce
order, crush convict spirit, and make the first American penitentiaries self-sufficient. The answer?

43

See Meskell, id. at 839.
See Ashley T. Rubin, Early US Prison History Beyond Rothman: Revisiting the Discovery of the Asylum, 15 ANN.
REV. L. & SOC. SCI. 137, 141 (2019).
45
Id. at 140.
46
Id. at 142.
47
See David M. Shapiro, Solitary Confinement in the Young Republic, 133 HARV. L. REV. 542, 552 (2019).
48
Rubin, id. at 142.
49
Id. at 143.
50
Id..
51
Id. at 146.
52
Id.
53
MICHAEL MERANZE, LABORATORIES OF VIRTUE: PUNISHMENT, REVOLUTION, AND AUTHORITY IN PHILADELPHIA,
1760-1835 (1996)
54
Id. at 131.
44

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A series of penal reforms that not only eliminated the moral reform aspect of the earliest prisons,
but also aimed to shrink the cost of incarceration by focusing on the prospect of inmate labor.55
C. The Industrial Prison
In the early to mid-19th century prisons, inmate labor rapidly became a popular means for
states to recoup the imprisonment costs.56 In fact, “the history of nineteenth-century American
prisons is a history of contracting between the state and private interests for the use of convict
labor in efforts on both sides to achieve financial gain.”57 Keeping prisoners busy while
simultaneously making profit was an irresistible opportunity. As such, “contractual penal
servitude” became the primary mode of punishment in all Northern states and many Southern
states as well during this time period.58
In addition, inmate labor played a large role in driving the economy of early 19th-century
American cities. In Philadelphia, for example, “the demand for prison labor was tied to the
performance of Philadelphia’s economy,” because inmate labor was secured through contracts
with the city’s private businesses.59 Likewise, one way that early 19th-century New York dealt with
the growing problem of its convict population was to institute contractual penal servitude.60
Auburn prison, built in Westchester, away from New York City, was the first penitentiary
to set up a contract labor system for its inmates, selling this labor to private business.61 Auburn
soon became a veritable factory, its prisoners producing thousands of items to be sold by private
merchants.62 After 1830, most of the Northern states followed suit and instituted what became
known as the “Auburn system,” which included an inmate’s labor for a private contractor by day
and isolation in cells by night, overseen by strict discipline and few judicial rights.63
Under the Auburn system of prisoner contract labor, inmates worked inside the prison to
create finished goods for private manufacturers.64 The manufacturers provided the prison with
raw materials to be refined by prison labor, such as footwear, carpets, furniture, and clothing.65
Although the system was rife with corruption, with company representatives often trying to
defraud prisons, overwork the prisoners through bribes and threats, and steal the goods to sell on
the black market, this prison contract labor setup thrived through the end of the 19th century.66

55

REBECCA MCLENNAN, THE CRISIS OF IMPRISONMENT: PROTEST, POLITICS, AND THE MAKING OF THE AMERICAN
PENAL STATE, 1776–1941, 55 (2008).
56
See Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L. REV. 437, 450-51 (2005).
57
Id. at 451.
58
MCLENNAN, id. at 4.
59
Meranze, LABORATORIES OF VIRTUE, at 226.
60
MCLENNAN, id. at 53.
61
Id.
62
Id.
63
Id. at 53, 60.
64
Meskell, History of Prisons, at 861.
65
See FOUNDATIONS OF CORRECTIONS 19 (2020), https://www.sagepub.com/sites/default/files/upmbinaries/97948_Chapter_1_Early_History_of_Punishment_and_the_Development_of_Prisons_in_the_United_States
.pdf
66
Meskell, History of Prisons, at 861.

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The concept of contract prison labor skyrocketed in political popularity, particularly during
the 1830s.67 Private contractors helped shape the growth of prison industries, particularly in the
north, despite frequent complaints about prison labor.68 Between 1825 and 1850, Maine, New
York, New Hampshire, Vermont, Massachusetts, Connecticut, New York, the District of
Columbia, Virginia, Tennessee, Louisiana, Missouri, Illinois, and Ohio all built prisons based on
congregate penal labor.69
Inmate labor and desire to reap profit became one of the dominant organizing forces of
American prisons.70 As observed, “the practice of selling the labor of convicts to private enterprise
gradually became deeply and widely entrenched in penal ideology.”71 By the 1840’s, an individual
convicted of a felony would spend their prison time working for the benefit of private labor or a
state-run business.72
Contractual penal servitude, where the state sold the labor power of inmates to private
businesses, was so influential that most early-to-mid 19th century prisons in the U.S. were
organized like factories.73 State governments typically leased the prison facility as well as the
inmates to entrepreneurs, who ended up reaping the profits.74 “The states’ paltry earnings did not,
however, discourage their insistence on prisoner labor.”75 Simply the act of defraying some of the
costs of punishment was enough to cement the system of inmate convict labor as a vital source of
revenue.76 In almost every Auburn-system prison in the 1840’s, the revenue created by convict
laborers significantly diminished the annual cost of running the prison itself.77
Economic profitability became a key motive during this era of the industrial prison. The
Auburn system, instituted at the prison in Auburn, NY, was “fixated on profits.”78 In fact, the
prisoner workplaces at Auburn bore great similarity to New York City’s industrial workshops,
since they were both animated by profit motive.79 The popularity of the Auburn prison system
resonated particularly for legislatures, as the New York style of incarceration produced annual
economic surpluses and was inexpensive to run.80 As a result, most prisons constructed from the
1840’s through the 1870’s were predicated on the Auburn system.81

67

Id..
See GLEN GILDEMEISTER, PRISON LABOR AND CONVICT COMPETITION WITH FREE WORKERS IN INDUSTRIALIZING
AMERICA, 1840-1890, 55 (1987).
69
See W. DAVIS LEWIS, FROM NEWGATE TO DANNEMORA: THE RISE OF THE PENITENTIARY IN NEW YORK, 17961848, 109-110 (1965).
70
MCLENNAN, id. at 54.
71
Id.
72
Id. at 66.
73
See generally DARIO MELOSSI AND MASSIMO PAVARINI, THE PRISON AND THE FACTORY: ORIGINS OF THE
PENITENTIARY SYSTEM (1981).
74
MCLENNAN, id. at 8, 63-64.
75
Rubin, id. at 147.
76
MCLENNAN, id. at 67.
77
Id.
78
Meskell, History of Prisons, at 857.
79
Id.
80
Id. at 858.
81
Id.
68

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For reasons I discuss in Part II, by the late 1860’s, the cracks were beginning to show in
the prisons for profits paradigm. The focus on forced prisoner labor resulted in terrible physical
conditions, no skills training, and a complete lack of rehabilitation.82 Northern states, however,
continued to utilize prisons for both punishment and profit.
Part II: Postbellum Carceral Labor
The Civil War and its aftermath resulted in a sharp division between Northern and Southern
states in terms of criminal punishment, carceral labor, and profit. Following the Civil War and the
end of slavery, the South instituted its own “peculiar” brand of prison profiteering, primarily based
on Black bodily punishment and backbreaking carceral toil. In contrast, Northern states continued
on the path of making money through inmates’ “hard labor,” which—while painful and unpleasant
for prisoners—was not the likely death sentence of the South’s racist, revenue-seeking practices.
A. The South.
Prior to the Civil War, Southern prisons typically held mostly white inmates, and
incarcerated only a few free Blacks.83 Slaves were governed by an entirely separate code of laws,
entrapped in a system which valued their labor over anything else, which also discouraged any
state or local punishment aside from that of their owners.84
Post-emancipation, however, the Southern landscape of imprisonment substantially
changed. The South’s post-war criminal justice system underwent a dramatic transformation,
quickly shifting to focus on the subjugation of Black labor, through the twin mechanisms of the
Black Codes and the convict leasing system.85 Roughly 15 years post-Civil War, the imprisonment
of Black individuals was 12 times higher than that of whites.86 The South created a criminal
justice system predicated on harnessing Black carceral labor for maximum profits, feeding the
material interests of prosperous white citizens.
1.

Black Codes and Convict Leasing

The institution of the Black Codes forced innumerable Black citizens into involuntary
carceral labor. After the Civil War, many formerly Confederate states passed laws severely
restricting the freedom and civil liberties of the newly-freed slaves.87 The South passed harsh
vagrancy laws which were extremely broad in scope, punishing any Black individuals who
“neglected their calling or employment or misspent what they earned.”88 Any Black citizens
found to be engaging in “vagrancy” could be punished by ten days imprisonment and a fifty
82

Id. at 860.
See Christopher Miller, Freedom and Convict Leasing in the Postbellum South, 124 AM. J. SOC. 367, 368 (2018).
84
FOUNDATIONS OF CORRECTIONS, id. at 20.
85
An Act to Amend the Vagrant Laws of the State, BLACK CODES OF MISSISSIPPI § 2 (1865), in The Slave
Experience: Legal Rights and Government, THIRTEEN,
https://www.thirteen.org/wnet/slavery/experience/legal/docs6.html
86
Miller, Freedom and Convict Leasing, at 368.
87
David Childs, Black Codes-American Slave Laws 1, MULTIRACIAL AMERICA, A MULTIPEDIA ENCYCLOPEDIA
(2013), https://www.academia.edu/8458317/Black_Codes_American_Slave_Laws
88
See Black Codes, https://law.jrank.org/pages/4769/Black-Codes.html#ixzz6oBU7izoM
83

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dollar fine,89 an almost unimaginable fee for newly-freed slaves. In tandem with the vagrancy
law was a system of special county courts, presided over a local justice of the peace and two
landowners, created to punish former slaves charged with violating any employment laws.90
Mississippi was the first to pass a set of Black Codes in the post-Civil War South.91
Mississippi law was particularly draconian, imposing punishments such as “corporal
chastisement” for Black citizens who were classified as vagrant.92 Most strikingly, the Mississippi
Black Code was the first to incorporate carceral labor into vagrancy punishments. The law held
that any Black male who could not pay the costs or fees imposed for his misdemeanor within 5
days would be subject to being hired out for labor by any white man who would pay the fine: “if
any freedman, free Negro, or mulatto convicted of any of the misdemeanors provided against in
this act shall fail or refuse, for the space of five days after conviction, to pay the fine and costs
imposed, such person shall be hired out by the sheriff or other officer . . . to any white person who
will pay said fine and all costs and take such convict for the shortest time. . . .”93 In addition, any
white citizen could seize and return any Black citizen who left their employer, earning five dollars
and transportation costs for their trouble.94 The return reward would be subtracted from the
employee’s wages.95
South Carolina was the next state to pass its own Black Code, with similarly harsh results. For
example, South Carolina created a racially separate court system for all civil and criminal cases
with Black plaintiffs or defendants.96 Black witnesses could only testify in court in cases affecting
“the person or property of a person of color.”97 In addition, certain crimes, such as rebellion, arson,
burglary, and assaulting a white woman, carried harsh penalties (including the death penalty),
which only applied to Black citizens.98 Punishments for minor offenses frequently resulted in
whipping or leasing the defendant’s labor, penalties rarely imposed on whites.99 Alabama,
Georgia, Louisiana, Florida, Tennessee, Virginia, and North Carolina quickly followed suit by
enacting similar laws of their own.100

89

See, e.g., § 7, An Act to Amend the Vagrant Laws of the State, MISS. BLACK CODES (1865),
https://sharetngov.tnsosfiles.com/tsla/exhibits/blackhistory/pdfs2/1865%20Mississippi%27s%20Black%20Codes.pd
f
90
See, e.g., Carl. H. Moneyhon, Black Codes, TEX. ST. HIST. ASSOC. HANDBOOK OF TEX.,
https://www.tshaonline.org/handbook/entries/black-codes.
91
Act to Confer Civil Rights on Freemen, MISSISSIPPI BLACK CODES, at § 7.
92
An Act to Regulate the Relation of Master and Apprentice, as Relates to Freedmen, Free
Negroes, and Mulattoes § 3, MISSISSIPPI BLACK CODES.
93
An Act to Punish Certain Offenses Herein Named, and for Other Purposes § 5, MISSISSIPPI BLACK CODES.
94
An Act to Confer Civil Rights on Freemen, and for Other Purposes, BLACK CODES OF MISSISSIPPI § 7 (1865), The
Slave Experience: Legal Rights and Government, THIRTEEN,
https://www.thirteen.org/wnet/slavery/experience/legal/docs6.html
95
Act to Confer Civil Rights on Freemen, BLACK CODES OF MISSISSIPPI, at § 7.
96
See South Carolina Black Code § 5, The Southern Black Codes of 1865-1866, CONST. R. FOUNDATION,
https://www.crf-usa.org/brown-v-board-50th-anniversary/southern-black-codes.html
97
Id.
98
Id.
99
Id.
100
Black Codes of Mississippi, at id.

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Even minor crimes carried great financial penalties for Black citizens, including fines set
high enough that no newly freed slave could possibly pay.101 For those who could not pay such
fines, three months of hard labor was prescribed.102 Far longer-lasting convict leasing
arrangements were found in Georgia, which passed laws sanctioning inmate leasing for twenty
years at a time, only costing the employer approximately $500,000.103 Such laws continued long
past the expiration of the original Black Codes.104
Through these openly discriminatory Black Codes, the South instituted an arrangement of
forced Black labor through a system of convict leasing, creating an organized capital market for
Black prisoners.105 In other words, convict leasing primarily worked as a system of forced labor,
and was never focused on either preventing or punishing crime.106 Instead, the laws worked to
maximize profit for Southern whites. Indeed, Black prisoners were seen as “unfit” for
incarceration, since prison was envisioned as either reformative or rehabilitative.107 Since Black
citizens, assumed to be “inferior,” could not be reformed, the state decided it was simply not worth
incarcerating them.108 Instead, prisoners were farmed out for profit.
The forced labor of convict leasing applied to all freed slaves, but was largely used for
Black men convicted of crimes. Black women and children, however, were also subject to its
cruelties.109 One common section of Southern Black Codes focused on Black orphans or
impoverished children, who could be “apprenticed” to any whites who wished to use them for
labor, with preference given to the children’s former owners.110 The “masters and mistresses” of
such apprentices had “the power to inflict . . . moderate corporal chastisement,” as long as it did
not rise to the level of cruel and unusual punishment.111
The institution of the Black Codes meant that Black men were arrested and convicted for
petty offenses, then sentenced to the vast network of private prison camps which leased them out
for profit.112 Those leasing the prisoners had total custody and control.113 Accordingly, the lessees
focused on profits by extracting maximum labor from those convicted, with “little incentive to
preserve prisoners’ welfare or lives.”114

101

Goodwin, Modern Slavery, at 937-38.
Id. at 937-38
103
Id.
104
Id.
105
See DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS
FROM THE CIVIL WAR TO WORLD WAR II 64 (2009).
106
Pope, Mass Incarceration and Convict Leasing, at 40.
107
See Ashley T. Rubin, Early U.S. Prison History Beyond Rothman, 15 ANN. REV. L. & SOC. SCI. 137, 150 (2019).
108
Id.
109
See generally TALITHA LEFLOURIA, CHAINED IN SILENCE: BLACK LABOR AND CONVICT LABOR IN THE NEW
SOUTH (2015) (discussing how Black women were also forced into convict leasing system).
110
See Mississippi Apprentice Law § 2, Laws of Mississippi 85 (1865).
111
Mississippi Apprentice Law § 2, id.
112
See Kathy Roberts Forde, Exploiting Black Labor After the Abolition of Slavery, THE CONVERSATION (Feb. 6,
2017), https://theconversation.com/exploiting-black-labor-after-the-abolition-of-slavery-72482
113
See Dorothy Roberts, Abolitionism Constitutionalism, 133 HARV. L. REV. 1, 32 (2018).
114
Id.
102

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In Georgia, as well as in other Southern states, convict leasing not only massively increased
a state’s coffers, but also freed them from the burden of building and maintaining prison facilities
for what soon became a massively engorged prison populations (due to the punitive penal codes
imposed).115 Multiple privately-owned prison camps sprung up in lieu of state-run facilities, and
Georgia’s revised penal code required that prisoners be rented out to various independent
industries, creating profit both for the state and for the employers, who paid far less than the going
rate for free labor.116 Additionally, the arrangement freed the state from the expense of providing
for the rapidly increasing prison population.117
The Civil Rights Act of 1866 outlawed these early race-based forms of convict leasing.118
The Act declared freed people to be citizens of the United States who could make and enforce
contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and
convey real estate and personal property.119 The Civil Rights Act was not enforceable, however,
until the passage of the 14th Amendment, which fully eradicated the Black Codes, as it stated that
all were subject to equal protection under the law.120
Moreover, the Thirteenth Amendment, which formally abolished slavery and involuntary
servitude in 1865, carved out an exception for crimes “whereof the party shall have been duly
convicted.” Accordingly, following the passage of the 14th and 15th Amendments, Southern states
simply continued the practice of convict leasing as part of their sentencing and imprisonment of
prisoners.121 This continued and spread the practice of convict leasing for many more years. Every
state in the South practiced convict leasing, including Tennessee, Texas, Georgia, Florida,
Arkansas, Mississippi, and Louisiana.122
Convict leasing after Reconstruction helped serve a number of financial purposes.
Proponents of the “New South,” focused on beginning industrialization, insisted that the South
needed a newly diversified financial system, one not completely based on agriculture.123 Convict
labor rapidly became a key aspect in restoring the region’s devastated economy.124 The South
used as its blueprint the colonial version of convict labor, as discussed in Part I, where British
convicts were auctioned off to plantation landowners as indentured servants for a set period.125
Georgia led the way in reinstituting convict labor and the prisoner-profit ethos, creating a
substantial source of prosperity for its white leaders.126 This was because convicted Black

115

LEFLOURIA, CHAINED IN SILENCE, at 67.
Id..
117
Id. at 68.
118
See James Pope, Mass Incarceration and Convict Leasing, 94 N.Y.U. L. REV. 1, 1 (2019).
119
See CIVIL RIGHTS ACT OF 1866, 14 Stat. 27-30 (enacted April 9, 1866, but not ratified until 1870).
120
See Black Codes, AM. BATTLEFIELD S. (October 20, 2020), https://www.battlefields.org/learn/articles/blackcodes
121
In Texas, for example, convict leasing involved the entire penitentiary system, which leased all prisoners to one
single employer, the Williams sugarcane plantation. See Michael Hardy, Blood and Sugar, TEXAS MONTHLY
(January 2017), https://www.texasmonthly.com/articles/sugar-land-slave-convict-labor-history/
122
Goodwin, Modern Slavery, at 942.
123
LeFlouria, Chained in Silence, at 62.
124
Id. at 63.
125
Id. at 65.
126
Id. at 66.
116

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prisoners could be forced to produce twice the work of free labor.127 With the advent of convict
leasing, Southern white elites utilized their state punishment system to “transfer wealth, confiscate
land, and preserve racial hierarchy through convict leasing—that is, criminalizing people so that
their bodies could be forced to work for profit.”128
The system of convict leasing meant that an extremely high number of Black Southern men
were compelled into servitude by local courts through the use of strict misdemeanor criminal
codes, applied in a racially discriminatory manner.129 Once convicted, the local sheriff would sell
Black inmates’ labor to “giant corporate prison mines” or lease groups of prisoners to local
farmers.130 Hundreds of forced labor camps came to exist in the South, run by local government,
farmers, corporations, and entrepreneurs.131 Every Southern state used convict labor as a way to
create great profit.132 In addition, the leasing system was so popular that the widespread corruption
and collusion were simply accepted as part of the business.133
Controlling the sale of prisoner labor was a spectacularly lucrative affair.134 The sheriff
made money by collecting the debts and fees from the prisoners, as well as any amount of money
left over from the daily “feeding fees” paid by the state. Due to such potential profits, local sheriffs
were strongly financially motivated to arrest and convict as many Black men as possible, and feed
them quite minimally.135 The lessees of such prisoner labor also financially profited. Convict
leasing was “one of the greatest single sources of personal wealth to some of the South’s leading
businessmen and politicians.”136
Conditions were beyond squalid in Southern prison camps. Black prisoners were often
packed into filthy, windowless cabins like slaves on the Middle Atlantic passage.137 All convicts
wore ankle shackles day and night, connected to one another.138 Like slaves, inmates worked
incessantly under insufferable conditions, and were frequently bought and sold, sometimes
repeatedly.139 Convicts were harshly whipped and beaten.140 Clothing and sanitary conditions were
frequently defective or non-existent.141 Very little care was taken to preserve the lives and wellbeing of the people sentenced to serve.142

127

Id.
Alex Karakatsanis, The Punishment Bureaucracy, 128 YALE L. J. F. 848, 863 (2019)
129
BLACKMON, SLAVERY BY ANOTHER NAME, at 6.
130
Id. at 7.
131
Id.
132
Forde, Exploiting Black Labor, at id.
133
See Michele Goodwin, Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899, 944
(2019).
134
BLACKMON, SLAVERY BY ANOTHER NAME, at 65.
135
Id.
136
Matthew Mancini, Race, Economics, and the Abandonment of Convict Leasing, 63 J. NEGRO HIST. 339, 339
(1971).
137
BLACKMON, SLAVERY BY ANOTHER NAME, at 74.
138
Id..
139
Miller, Freedom and Convict Leasing, at 368.
140
Id..
141
BLACKMON, SLAVERY BY ANOTHER NAME, at 135.
142
Id. at 288-89.
128

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Florida provides a particular brutal example of conditions in convict leasing camps.
Prisoners sentenced to Florida’s convict leasing system were subjected to heavy chains and
shackles, constant search by dogs, and punishment with whips, sweat boxes, and stringing up by
the thumbs.143 Living conditions were filthy, with little to no medical attention provided.144 Even
if prisoners were seriously injured or ill, they were forced to work.145 Although the camps were
primarily male, women sentenced to convict leasing also had to fend off a constant threat of sexual
assault in the camps.146
Florida was also unique in that it also ensnared white immigrant workers into the maw of
its system, particularly with H.M. Flagner’s railways and luxury hotels.147 Northern labor agencies
helped ensnare recently arrived immigrants down to the Florida Keys, where they were then
refused transportation off the islands unless they paid back their large debts for transportation,
boarding, and food.148 Those who would not work under bad conditions were refused food, and
sick workers were beaten and threatened with death.149
Florida’s convict leasing program became so notorious that even the popular press wrote
about it negatively. In 1907, Cosmopolitan magazine published an article describing Florida’s
system of modern-day slavery, “[a] revelation of appalling conditions in Florida and other states,
which make possible the actual enslavement of whites and blacks under trust domination.”150 The
article detailed how both whites and blacks were undergoing “chattel slavery” at the hands of large
corporations in the South, such as Standard Oil, the Florida East Coast Railway, and the trusts for
lumber and turpentine.151
By the late 19th century, Southern states such as Georgia, Alabama, and Tennessee had
spectacular growth in the coal and iron industry, outpacing the North and creating substantial
wealth for owners and for the states themselves.152 For example, between the years of 1880 and
1904, ten percent of Alabama’s state budget derived from profits earned by leasing state
convicts.153 This industrial growth was almost entirely contingent on convict leasing, since the
profits gained by using low-cost convict labor made the industry able to sell the commodities at a
cheaper rate.154
143
See Bryan Bowman and Kathy R. Forde, How Slave Labor Built the State of Florida, Decades After the Civil
War, WASH. POST (May 17, 2018), https://www.washingtonpost.com/news/made-by-history/wp/2018/05/17/howslave-labor-built-the-state-of-florida-decades-after-the-civil-war/
144
Id..
145
Id.
146
LEFLOURIA, CHAINED IN SILENCE, at 78.
147
Bowman & Forde, Slave Labor, at id.
148
Id.
149
Id.
150
See Richard Barry, Slavery in the South To-Day, 5 COSMOPOLITAN MAG. 481 (March 1907),
https://books.google.com/books?id=Uo558Ql8vSEC&pg=PA481&lpg=PA481&dq=richard+barry+cosmopolitan+sl
avery+in+the+south&source=bl&ots=ESqWAAE_Hg&sig=ecG4tm2nr5Qm0pegFcXc3gWkQ6g&hl=en&sa=X&ve
d=0ahUKEwjP5ICvtfnaAhWowFkKHZHrDB4Q6AEINDAD#v=onepage&q=richard%20barry%20cosmopolitan%
20slavery%20in%20the%20south&f=false
151
Id. at 481-82.
152
LEFLOURIA, CHAINED IN SILENCE, at 73.
153
Shane Bauer, The True History of America’s Private Prison Industry, TIME (September 18, 2018),
https://time.com/5405158/the-true-history-of-americas-private-prison-industry/
154
LEFLOURIA, CHAINED IN SILENCE, at 73.

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The capital growth of the South post-Reconstruction became inseparable with the convict
leasing system; “only in the South did the physical ‘penitentiary’ become virtually synonymous
with the various private enterprises in which convicts labored.”155 In particular, the turpentine and
lumber camps located in Georgia, Florida and Louisiana commonly made the prisoners labor until
they literally died, either from overwork or disease.156 “There was simply no incentive for lessees
to avoid working people to death.”157 During the late 19th century, the death rate for Black men
sentencing to convict leasing ranged from 16 percent to 25 percent.158 Additionally, the South’s
“plantation monocultures in cotton and sugar” used convict leasing labor to harvest its crops, using
both male and female Black prisoners.159 Finally, the Southern coal mines were so deadly for
convict lessees that they were known as “nurseries of death.”160
The lessees of Southern convicts were only interested in productive laborers; prisoners
who were sick or infirm were sent back to jail.161 The capital cost of convict laborers was so fixed
that it became a commodity for speculation, with several convict-leasing companies “organized to
speculate in convict-labor futures.”162 Thus Southern prisoners were quickly transformed from
men to convicts to workers to units of fixed capital, directly responsible for industrial profit. The
convict leasing system granted “absolute authority” to private commercial interests.163 As even a
young Woodrow Wilson remarked, “Who can defend a system which makes the punishment of
criminals . . . . a source of private gain?”164
Yet the practice of convict leasing was widely tolerated, because the rapid industrialization
of the South reaped a financial advantage for the entire nation, benefiting the national economy.165
Although the federal government had numerous opportunities to put a stop to the terrible practice,
it never intervened.166 Convict leasing was used in the South until approximately the 1920’s, but
it was not formally abolished until Franklin Roosevelt did so in 1941.167

155

ALEXANDER C. LICHENSTEIN, TWICE THE WORK OF FREE LABOR:
IN THE NEW SOUTH 3 (1996).

THE POLITICAL ECONOMY OF CONVICT LABOR

156
See Steve Fraser & Joshua C. Freeman, 21st Century Chain Gangs, SALON (April 19, 2012),
https://www.salon.com/2012/04/19/21st_century_chain_gangs/
157
Bauer, True History, at id.
158
Id.
159
Fraser & Freeman, Chain Gangs, at id.
160
Id.
161
See MATTHEW MANCINI, ONE DIES, GET ANOTHER: CONVICT LEASING IN THE AMERICAN SOUTH, 1866 – 1928,
22 (1996).
162
Id. at 24.
163
Fraser & Freeman, 21st Century Chain Gangs, at id.
164
MANCINI, ONE DIES, GET ANOTHER, at 32.
165
Forde, Exploiting Black Labor, at id.
166
Id.
167
See Circular No. 3591 (directive from Attorney General Francis Biddle to all U.S. Attorneys, explaining
procedure for handling cases relating to involuntary servitude, slavery and peonage) (December 12, 1941),
https://www.archives.gov/research/investigations/fbi/classifications/050-slavery.html

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2. Debt Peonage
Debt peonage sprung up alongside convict leasing during the Southern post-Reconstruction
era, becoming another method where maximum revenues were ruthlessly extracted from primarily
Black carceral labor. Starting concomitantly with convict leasing, debt peonage also grew out of
the end of the Civil War; the white ruling class in the South decided that freed slaves needed a
contract system post-emancipation.168 The Black Codes implemented following the Civil War
incorporated compulsory contract laws for newly freed Black citizens, enforced by the underlying
menace of vagrancy laws.169
Debt peonage had a fairly simple premise: convicted individuals who owed any debt were
held beyond the end of their prison sentences, required to work off their debts by laboring for their
lessor-turned-employer.170 Anyone who tried to escape before paying off their debt in full was
usually arrested for vagrancy, and then leased out for their labor as convicts.171 Thus debt peonage
and convict leasing were closely entwined in a system of extracting profits from Black individuals
in the South.
The South’s compulsory contract laws obliged Black men to sign year-long agricultural
contracts by January of each year. If they did not, the men could be arrested, convicted for
vagrancy, and forced to work for an employer.172 Harsh penalties for vagrancy and petty theft
supplied the fodder for such criminal surety laws.173
Under the criminal surety framework, a surety would pay the fines and court costs charged
to impoverished defendants who were convicted of minor criminal offenses.174 In exchange, the
criminal defendant would contract to work off the debt for the surety.175 Debt peonage used labor
subordination as yet another tool in a profit-driven, racist criminal justice system.176
Violating one of these surety agreements was a criminal offense in and of itself, and would
inevitably lead to another surety contract to pay for the second “violation.”177 In reality, the
criminal surety system created an “ever-turning wheel of servitude,”178 since breaching these
exploitative contracts simply led to new contracts, which were even lengthier.179 Convicted

168

See PETE DANIEL, THE SHADOW OF SLAVERY: PEONAGE IN THE SOUTH, 1901 – 1969, 19 (1990).
See Michael J. Klarman, Race and Court in the Progressive Era, 51 VAND. L. REV. 881, 921 (1998).
170
Bowman & Forde, Slave Labor, at id.
171
Id.
172
Klarman, Race and Court, at 922.
173
Id.
174
Id.
175
Id.
176
See Noah Zatz, A New Peonage? Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and
Beyond, 39 SEATTLE L. REV. 927, 929 (2016).
177
Klarman, Race and Court, at 922; see also United States v. Reynolds, 235 U.S. 133 (1914) (invalidating Alabama
criminal surety law that enforced voluntary or involuntary labor of any persons as peons, in liquidation of any debt
or obligation).
178
Reynolds, 235 U.S. at 146-47. Despite the Supreme Court’s decision in Reynolds, the rulings had minimal impact
on the prevalence of coerced black labor in the South. Klarman, Race and Court, at 926.
179
Klarman, Race and Court, at 922.
169

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defendants were frequently required to do hard labor for far longer a time period than what their
original violation or misdemeanor authorized.180
Debt peonage encompassed the minor crimes and trumped-up charges faced by many
Black citizens.181 Many of the crimes involved larceny of under one dollar, and the courts usually
did not consider the crimes particularly serious.182 For example, during one month in a single
county in Georgia, 149 individuals were convicted for crimes tantamount to “walking on the grass
or spitting on the sidewalk,” leading to a combined sentence total of 19 years.183
After individuals were arrested and convicted by local courts, they were assigned
staggering fines and court fees, and frequently forced to work for a local employer who would pay
their fines.184 For example, individuals might be tried and convicted for the crime of using
offensive language; the fine for this offense was $10, with an additional $25 in court costs.185 A
sum such as this would usually take 8 months of labor to work off.186 The debt could only be paid
off by physical labor.187
In addition, local law enforcement often colluded with planters and farmers, conducting
“vagrancy roundups” or arresting individuals on very minor crimes to provide enough labor during
harvesting season.188 Put another way, the criminal surety system systemically produced an
involuntary Black work force through basic fraud.189
Although debt peonage was technically outlawed by Congress in 1865, following the
passage of the 13th Amendment, in reality the practice continued until the 1940’s.190 Neither the
passage of the Anti-Peonage Act in 1867 (where Congress tried to prohibit coercion of labor to
pay off debt), nor the existence of two Supreme Court cases invalidating debt peon statues,191 had
any effect in the South.192 Like with convict leasing, Southern states simply continued to utilize a
web of criminal and penal statutes that forced indebted convicted defendants to unwillingly work
for employers.193 Debt peonage continued in this fashion until after World War II.194

180

Id.
See Slavery v. Peonage, SLAVERY BY ANOTHER NAME, PBS, https://www.pbs.org/tpt/slavery-by-anothername/themes/peonage/
182
DANIEL, SHADOW OF SLAVERY, at 27.
183
See Tamar Birkhead, The New Peonage, 72 WASH. & LEE L. REV. 1595, 1616 (2015).
184
Slavery v. Peonage, at id.
185
DANIEL, SHADOW OF SLAVERY, at 26 n.15.
186
Id.
187
Birkhead, id. at 1599.
188
Klarman, Race and Court, at 923.
189
Id. at 925.
190
DANIEL, SHADOW OF SLAVERY, at 19.
191
See Bailey v. Alabama, 219 U.S. 219, 245 (1911); United States v. Reynolds, 235 U.S. 133, 149–50 (1914).
192
Birkhead, id. at 1606.
193
Id. As Birkhead notes, “Among the innovations were criminal surety statutes that allowed employers to pay the
court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, and
use of offensive language, in exchange for a commitment to work.” Id.
194
See Anti-Peonage Act of 1867, STATUTES AND STORIES, https://www.statutesandstories.com/blog_html/peonageact-of-1876/
181

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With minimal land or capital, many newly freed Black citizens ended up signing contracts
to labor on plantations or farms, in order to survive.195 Many planters would not allow laborers to
leave their farms if any money was owed, making debt peonage even more complex.196 Debt
peonage existed all over the South, but was particularly common in the cotton belt of the Carolinas,
Texas, and the Mississippi Delta, as well as the turpentine farms of Florida, Georgia, Alabama,
and Mississippi.197
The convict camps on the turpentine farms were extraordinarily punitive, even for debt
peonage and convict leasing.198 Living conditions, food, and work regimes were atrocious.199
There was little to no state oversight.200 A 1923 Florida investigation of these convict camps
described them as “human slaughter pen[s].”201 Technically illegal, these “wildcat” camps were
almost impossible to eradicate, despite the muckraking journalism that exposed their horrors.202
Southern debt peonage often functioned as much in custom as in law, with little to disturb
it, particularly when it combined with convict leasing. For example, police would simply arrest
Black laborers who allegedly owed money, throw them in jail, and then allow their employer to
punish them.203 Likewise, when laborers’ debt records were either lost or contested, often the
required labor contracts were simply extended, creating further debt on the part of the laborers.204
Even when the laborers’ bail for minor offenses had been paid by their employer, employers often
still informally required them to continue to work until they were satisfied the debt had been fully
paid.205
The Southern peonage system was enforced by local sheriffs, constables, and justices of
the peace.206 Local police colluded with planters to enforce shadowy debts that did not always
exist.207 Justices of the peace cooperated closely with employers, sometimes even going so far as
to pocket the fine monies owed.208 The fatal combination of duplicitous police and sheriffs,
willfully-blind court administrators, and all-white juries meant that the South simply negated any
anti-peonage law or court opinions, following instead their discriminatory local custom.209 Such
custom meant that the post-Reconstruction South profited immensely from the monies extracted
from Black carceral labor, imposed for trifling or non-existent crimes.210

195

DANIEL, SHADOW OF SLAVERY, at 20.
Id.
197
Id. at 22.
198
LICHTENSTEIN, TWICE THE WORK OF FREE LABOR, at 171.
199
Id.
200
Id.
201
See Matt Marino, The Brutality of Florida’s Turpentine Industry, FLOWRITER (November 19, 2018),
https://flowriter.net/2018/11/09/the-brutality-of-floridas-turpentine-industry/
202
LICHTENSTEIN, TWICE THE WORK OF FREE LABOR, at 171.
203
DANIEL, SHADOW OF SLAVERY, at 25.
204
Birkhead, New Peonage, at 1606.
205
DANIEL, SHADOW OF SLAVERY, at 26.
206
Id. at 30.
207
Id. at 31.
208
Daniel, Shadow of Slavery, at 32.
209
Birkhead, New Peonage, at 1624.
210
Id.
196

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3. Chain Gangs
Even after convict leasing was finally eradicated, however, here was little relief for
Southern prisoners, who remained primarily Black men. As control of carceral labor was
transferred from private to public holdings, the South turned to a system of chain gangs and state
farms, once again focusing on the profit to be extracted from the physical toil of those who had
been convicted.211
The end of convict leasing certainly did not spell the end of carceral labor. Indeed, chain
gangs were developed as a popular solution to the expensive problem of housing and feeding
prisoners.212 The use of the chain gang allowed Southern state governments to avoid building and
refurbishing prisons. Chaining prisoners together for work purposes (particularly road
construction) was quick, easy, and extremely inexpensive.213 In addition, chains eliminated the
need for many guards, since escape was so difficult. 214
The primary difference between convict leasing and chain gangs was the recipient of the
labor: under convict leasing, prisoners were leased to private commercial interests; with the chain
gang system prisoners were leased to the state to work on public projects.215
When handed back the reins of prisoner control, Southern state penitentiaries quickly
instituted a brutal form of forced labor with chain gangs.216 The chain gang consisted of convicted
and incarcerated individuals who would do forced labor on a state’s public works, such as building
roads or clearing land.217 The majority of people sentenced to work on chain gangs were Black
male prisoners.218
Working on the chain gang proved just as brutal as laboring under the convict lease system.
Prisoners on a chain gang were shackled by their ankles essentially around the clock, during eating,
sleeping, and laboring, in groups of five.219 Chain gangs often proved deadly for prisoners, as
Alex Lichtenstein has detailed:

[Prisoners] labored, ate, and slept with chains riveted around their ankles. Work
was done "under the gun" from sun-up to sundown, shoveling dirt at fourteen
shovelfuls a minute. Food was bug-infested, rotten and unvarying; "rest" was
taken in unwashed bedding, often in wheeled cages nine feet wide by twenty
211

See Stephen Garvey, Freeing Prisoners’ Labor, 50 STAN. L. REV. 339, 364-65 (1998)
See Chain Gangs, Slavery by Another Name, PBS, https://www.pbs.org/tpt/slavery-by-anothername/themes/chain-gangs/
213
See Lynn Burley, History Repeats Itself in The Resurrection of Prisoner Chain Gangs: Alabama's Experience
Raises Eighth Amendment Concerns, 15 MINN. J. L. & EQUITY 127, 130 (1997).
214
Id. at 130.
215
See Neveen Hammad, Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery, 26 VA.
L.J. SOC. P. & L. 65, 70-71 (2019).
216
See America’s History, Race and Prisons: Reimagining Prisons, VERA INSTITUTE,
https://www.vera.org/reimagining-prison-web-report/american-history-race-and-prison
217
Id.
218
Id.
219
WALTER WILSON, FORCED LABOR IN THE UNITED STATES 68 (1933).
212

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feet long containing eighteen beds. Medical treatment and bathing facilities
were unsanitary, if available at all. And, above all, corporal punishment and
outright torture . . . was meted out for the most insignificant transgressions.220
Although many are aware of the existence of chain gangs due to their popular prevalence in song
and film, most are not cognizant of the inhumane treatment suffered by the prisoners working in
them.
Chain gangs were particularly useful for road construction in the late 19th century and early
20th century South. Chain gang prisoners built the Tamiami Trial in Florida.221 South Carolina,
North Carolina, and Georgia also used chain gangs extensively to build and repair roads all over
the state.222 This focus on roads was due to the introduction of mass-produced automobiles,
spurring public demand for decent roads throughout the South.223
Using chain gangs to repair roads saved considerable money for Southern state
governments. For example, in South Carolina, a low-skilled cotton mill hand was paid $1.25 per
day in 1915.224 In contrast, housing, clothing, and food for chain gang members cost only $0.20
per day, pay for guards was only another twenty cents, per day, and then miscellaneous costs added
merely $0.15 per day.225 In other words, chain gang labor cost half of paid non-convict labor,226
and this included the costs of maintaining the prisoners, albeit very poorly.
Additionally, although many white Southerners wanted improved roads, they did not want
to pay for them fully through taxation or put in the paid labor to create them.227 Chain gangs
seemed the perfect solution, as they were a low-cost, forcibly compelled way to get the roads built
and repaired at no cost to white citizens.228 As the North Carolina Highway Commission noted in
1902, “the value of [convict labor] is not to be underestimated,” as the state would not be able to
otherwise obtain labor to fix its roads.229 Even counties that previously could not afford the labor
costs to build roads now found it affordable with the use of chain gangs.230
Moreover, the state-run chain gang, used to build not only roads but also other
infrastructure projects, became “vital to the flourishing of a mature market economy and so to the
continuing process of capital accumulation.”231 In other words, the use of the chain gang did not
220

ALEX LICHTENSTEIN, TWICE THE WORK OF FREE LABOR: THE POLITICAL ECONOMY OF CONVICT LABOR IN THE
NEW SOUTH 183 (1996).
221
Andrew Ford, Florida Sheriff Reintroduces Chain Gang, FLORIDA TODAY (May 2, 2013),
https://www.usatoday.com/story/news/nation/2013/05/02/brevard-county-sheriff-chain-gang/2130335/
222
See Howard Bodenhorn, Bad Men, Good Roads, Jim Crow, and the Economics of Southern Chain Gangs 1, 3,
NBER Working Paper No. 28405 (January 2021),
https://www.nber.org/system/files/working_papers/w28405/w28405.pdf
223
Id. at 4.
224
Id. at 11.
225
Id.
226
Id.
227
LICHTENSTEIN, TWICE THE WORK OF FREE LABOR, at 163-64.
228
Id. at 164.
229
Id.
230
Id.
231
See Fraser & Freeman, Chain Gangs, at id.

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function simply as a cost-saving measure. Instead, its use was key to the South’s transformation
from a largely agrarian community to a modern 20th century industrial society.
The use of prisoners in chain gangs was not formally abolished throughout the United
States until the 1960s.232 Moreover, 35 years later, chain gangs made a resurgence. Alabama
brought chain gangs back to its prison experience in the mid-1990’s, causing a great outcry.233
Arizona, Massachusetts, Ohio, and Washington followed suit.234 Indeed, Maricopa County, AZ,
even briefly boasted of an all-female chain gang for approximately three years.235 Most recently,
Florida resurrected the chain gang in 2013, when the sheriff of Brevard County, FL, using a small
group of inmates from the local prison to labor on local roadsides.236 One difference, however, is
that the inmates are all volunteers, and they are not shackled to each other.237 Additionally, since
the prisoners who take part in the chain gang activities are already imprisoned in a correctional
facility, the state does not save any money by having them do outdoor labor, given the cost of
incarcerating an individual on a yearly basis. Similar to the post-bellum period, the majority of
individuals who participate in the chain-gang are Black or Latinx. The spectacle, however, is still
a disturbing one.

232

Burley, Resurrection of Prisoner Chain Gangs, at 131.
Id. at 128.
234
Ford, Chain Gang, at id.
235
Meg O’Connor, ‘Nation’s Only Female Chain Gang’ Apparently Disbanded, PHOENIX NEW TIMES (May 2,
2019), https://www.phoenixnewtimes.com/news/nations-only-female-chain-gang-boasts-the-mcso-website11279199
236
Ford, Chain Gang, at id.
237
Id.
233

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4. Penal Farms
Another form of forced prison labor in the form of prison farms, began to appear in the
South during the early-to mid- 20th century.238 For example, in 1928, the state of Texas supervised
12 state prison farms; virtually 100% of the prisoners working there were Black.239 In Florida,
likewise, convict leasing gradually morphed into prison farms.240 Many of the prison farms had
been former slave plantations before the state government acquired them.241
One of the most infamous Southern prison farms, Parchman Farm, was designed to
function similarly to an actual plantation.242 Located in the Mississippi Delta, the Parchman lands
were purchased by the Mississippi Penitentiary Board of Control in 1900, in hopes that the lands
would serve up “prolific yields.”243 Convicts were immediately put to work in preparing the land
for farming.244
Described as “the quintessential penal farm, the closest thing to slavery that survived the
Civil War,”245 prisoners labored for up to 15 hours a day, planting, picking cotton, and plowing
fields while watched by gun-toting guards.246 In fewer than ten years after it transformed into a
prison farm, Parchman became a money-making machine, reaping profits from the slave labor of
its inmates.247 Indeed, in its second year of operation, Parchman made $185,000 in profit (or
approximately $5 million dollars in today’s money).248 Parchman Farm was essentially “the
leading cash cow for the state of Mississippi. . . .adding hundreds of thousands of dollars and then
millions of dollars to the state treasury. . . . an enormous economic asset.”249 In sum, the twin
reasons for Parchman Farm’s existence were “money-making and …. racial control.”250 Parchman
Farm exploited and profited from Black bodies like they were machines.251

238

Reimagining Prisons, at id.
Id.
240
See Ben Conark, Work Forced: A Century Later, Unpaid Prison Labor Continues to Power Florida, FLORIDA
TIMES UNION (May 25, 2019), https://www.jacksonville.com/news/20190525/work-forced-century-later-unpaidprison-labor-continues-to-power-florida
241
See Maurice Chammah, Prison Plantations: One Man’s Archive of a Vanished Culture, MARSHALL PROJECT
(May 1, 2015), https://www.themarshallproject.org/2015/05/01/prison-plantations
242
See The Lasting Legacy of Parchman Farm, the Prison Modeled After a Slave Plantation, INNOCENCE PROJECT
(May 29, 2020), https://innocenceproject.org/parchman-farm-prison-mississippi-history/
243
See Parker Yesko, Letter from Parchman: Inside Mississippi’s Notorious Prison, APM REPORTS (May 29,
2018), https://www.apmreports.org/story/2018/05/29/inside-parchman-mississippi-notorious-prison
244
Lasting Legacy of Parchman Farm, at id.
245
DAVID OSHINSKY, WORSE THAN SLAVERY: PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICE 2 (1997).
246
Lasting Legacy of Parchman Farm, at id.
247
OSHINSKY, WORSE THAN SLAVERY, at 155.
248
Yesko, Letter from Parchman, at id.
249
Lillian Cunningham, Fair Punishment (ep. 9, Constitutional podcast), WASH. POST (Oct. 23, 2017),
https://www.washingtonpost.com/news/on-leadership/wp/2017/10/23/episode-9-of-the-constitutional-podcast-fairpunishment/
250
Yesko, Letter from Parchman, at id.
251
See Lily Pulver, Southern Prison Reform in the 20th Century: Mississippi’s Parchman Farm, ORGANIZING FOR
RACIAL JUSTICE, https://organizingforracialjusticeahistory.wordpress.com/home-3/lilys-page/
239

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As with convict leasing and chain gangs, the vast majority of early twentieth century prison
farms in the South used money-making as their guiding principle.252 In Arkansas, two prisons,
Cummins and Tucker, were working farms, specifically premised on antebellum Southern
plantations.253 The men labored without pay, and the farms were run for revenue.254 Patrolled by
armed men on horseback, the prisoners farmed cotton, rice, soybeans and cucumbers.255 Cummins
prison was an actual slave plantation simply converted to a prison farm, likely retaining the family
name of dead slaveowners.256
In 1880’s Texas, the state began to buy large tracts of agricultural land, situated on former
plantations.257 The Texas prison farms were “an agricultural prison model focused on the use of
inmate labor on state-owned land to benefit the state.”258 The prisoners were subsequently used
to extract profits from the farms. Although these Texas prison farms were renamed prison “units”
in the 1960’s, virtually everything else remained the same, including the stinting of proper food,
medical care, and housing for inmates, all to maximize revenues as possible.259
Texas prison farms yielded more than any local farms worked by free laborers, since
independent workers could not be whipped or starved to increase production.260 Throughout the
1950’s and 60’s, Texas plantation prison farms reaped an average revenue of $1.7 million per year
($13 million in 2018 dollars).261 In sum, Texas prison farms were money-making ventures.262
Angola prison farm in Louisiana also followed the slave plantation blueprint in wringing
the utmost labor from inmates. In 1900, Louisiana purchased 8,000 acres of a former plantation
named Angola, after the homeland of many of its former slaves.263 A major objective was to be a
self-sufficient penal system.264 In approximately 4 years, Louisiana managed to completely
construct a fully working, profitable, and self-sufficient prison farm, from purchasing lands to
deriving profits from crops.265 Money-making became Angola’s primary focus, “a profit-oriented

252

Shane Bauer, The True History of America’s Private Prison Industry, TIME (September 18, 2018),
https://time.com/5405158/the-true-history-of-americas-private-prison-industry/
253
See Colin Woodward, The Arkansas Prison Scandal, ARKANSAS TIMES (March 22, 2018),
https://arktimes.com/news/cover-stories/2018/03/22/the-arkansas-prison-scandal
254
Id.
255
Id.
256
See Keri Blakinger, Will the Reckoning Over Racist Names Include These Prisons, MARSHALL PROJECT (July 29,
2020), https://www.themarshallproject.org/2020/07/29/will-the-reckoning-over-racist-names-include-these-prisons
257
See CHAD TULSON & JAMES MARQUANT, FIRST AVAILABLE CELL: DESEGREGATION OF THE TEXAS PRISON
SYSTEM 80 (2010).
258
Id.
259
Id. at 81.
260
See Shane Bauer, The Straight Line from Slavery to Private Prisons, LITHUB (September 19, 2018),
https://lithub.com/the-straight-line-from-slavery-to-private-prisons/
261
Id.
262
Id.
263
See Vanessa Tolino, Lousiana State Penitentiary at Angola, 64 PARISHES, https://64parishes.org/entry/louisianastate-penitentiary-at-angola
264
Id.
265
See Mark CARLETON, POLITICS AND PUNISHMENT: THE HISTORY OF THE LOUISIANA STATE PENAL SYSTEM 92
(1984).

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policy of inmate plantation farming that closely mirrored slavery.”266 Angola’s major difference
from slave labor practices? There was far less incentive to keep the incarcerated laborers alive.267
Little has changed today at Angola, as prisoners only receive 4 to 20 cents an hour for their
farm labor (with agricultural workers getting paid the least).268 Inmates may keep only half their
wages, the rest being saved for their eventual release, even though most inmates never leave
Angola.269 Prisoners routinely work 17-hour days and 65-hour weeks, particularly after harsh
disciplinary reports are filed for the week.270 In many ways, Angola’s work plan has remained the
same since slavery,271 with profits continuing to be a main focus. Angola raises revenue through
the company “Louisiana’s Prison Enterprises,” which sells goods produced by inmates.272 brought
in almost $29 million in 2016, much of it from Angola.
In general, most prison farms were largely unable to compete with mechanized farming by
the 1930’s, and were reduced to growing food crops and livestock for prison consumption.273
Nonetheless, prison farms continued in their “slave plantation” format until 1980, when a federal
court decided Ruiz v. Estelle,274 which forced Texas prisons to improve working and living
conditions, addressed prison guard brutality, and no longer permitted armed inmates to guard
fellow prisoners.275
Likewise, Mississippi’s Parchman prison farm eventually ran into problems in the 1970’s.
In 1972, then-Mississippi Governor William Waller appointed a 5-member committee to review
the farming for profit model of Parchman Farm.276 The committee recommended eradicating forprofit farming operation, reducing acreage by three-quarters and only raising food for the prison
on the rest.277 The committee also recommended hiring a prison superintendent who specialized
in penology, not plantation farming.278
These changes followed the filing of a federal lawsuit by prison inmates, Gates v.
Collier,279 alleging a pattern of abuse, mistreatment, and segregation of prisoners by the
266

See Bryce Covert, Louisiana Prisoners Demand an End to Modern Day Slavery, THE APPEAL (June 8, 2018),
https://theappeal.org/louisiana-prisoners-demand-an-end-to-modern-day-slavery/
267
See Thomas Beller, Angola and the Shadow of Slavery, NEW YORKER (Aug. 19, 2015),
https://www.newyorker.com/culture/photo-booth/angola-prison-louisiana-photos
268
See Maya Schwenar, America’s Plantation Prisons, GLOBAL RESEARCH (August 30, 2008),
https://www.globalresearch.ca/america-s-plantation-prisons/10008
269
Id.
270
Id.
271
Id.
272
See Richard Davies, From Pecan Pralines to ‘Dots’ as Currency: How the Prison Economy Works, GUARDIAN
(Aug. 30, 2019), https://www.theguardian.com/us-news/2019/aug/30/prison-economy-informal-markets-alternativecurrencies
273
See JOYCELYN POLLOCK, PRISONS: TODAY AND TOMORROW 128 (2006).
274
Ruiz v. Estelle, 503 F.Supp. 1295 (S.D. Tex. 1980).
275
Ruiz, 503 F. Supp. at 1286 – 1288, 1303 – 1307, 1383 – 1384, 1391.
276
See Mississippi Urged to Revamp Prison, NYT, p.28 (October 8, 1972),
https://www.nytimes.com/1972/10/08/archives/mississippi-urged-to-revamp-prison-panel-proposes-eliminating.html
277
Id.
278
Id.
279
Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972).

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Mississippi State Penitentiary Board.280 The Mississippi district court found that the prison’s
practices of segregation, neglect, and abuse of prisoners violated both the 8th and 14th
Amendments.281 The case ultimately went up to the Fifth Circuit and dismantled a variety of abuses
and corporal punishment practices inside the prison.282
Gates v. Collier was the first federal case to hold unconstitutional any conditions depriving
inmates of basic hygiene and adequate medical treatment, as well as mail censorship and failure
to protect inmates from violence by other inmates.283 Following Gates, Parchman prisoners were
no longer required to work in the fields, finally eliminating the prison plantation system at this
prison.284
Today, prison farms still exist in modified form. In some states, the farm labor program is
required; refusing to work can result in punishments such as solitary confinement, extra discipline,
or more time behind bars.285 In addition, shrinking numbers of agricultural workers has led some
states to allow private companies to hire prisoners for agricultural labor.286 This is unquestionably
a boon to the private agriculture companies, given their savings in pay and insurance costs.287
Additionally, using prison labor means there are no unionization concerns or workplace complaints
for private employers.288
Additionally, in the era of COVID-19, working for a private farm employer can carry
serious health risks. In Arizona, for example, Perryville Prison housed 150 female inmates at a
temporary Hickman’s Family Farms labor camp (one of the largest egg producers in the state), to
ensure that egg production stayed high.289 28 of the women were infected with COVID-19 during
their stay.290 The working conditions at the Hickman Family Farms over the summer were very
poor, with acrid fumes, over 100 degree weather, and inconsistent air-conditioning.291 Arizona’s
contract with Hickman’s Farms is supposedly worth $5 million, and the prison deducts 80% of
every dollar earned by the women.292
Health and safety issues are also rife during non-pandemic prison labor at farms. In
Alabama, many inmates are sent on work release to private poultry industries, which requires
280

Gates, 349 F. Supp. at 885-86.
Id. at 893-895.
282
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974).
283
Gates, 501 F.2d at 1296.
284
Cunningham, Fair Punishment, at id.
285
See Rebecca McCray, A Disturbing Trend in Agriculture: Prisoner-Picked Vegetables, TAKEPART (April 14,
2014), http://www.takepart.com/article/2014/04/14/prison-ag-labor/
286
Id.
287
Id.
288
Id.
289
See Eliyahu Kamisher, Prison Labor is on the Frontlines of the COVID-19 Pandemic, THE APPEAL (October 5,
2020), https://theappeal.org/prison-labor-is-on-the-frontlines-of-the-covid-19-pandemic/
290
Id.
291
Id.
292
See Charity Ryerson, Cindy Wu, and Prue Brady, If Prison Workers Are Essential, We Should Treat Them Like
It: Prison Labor in the U.S., Part I, CORPORATE ACCOUNTABILITY LAB (Aug. 5, 2020),
https://corpaccountabilitylab.org/calblog/2020/8/5/if-prison-workers-are-essential-we-should-treat-them-like-itprison-labor-in-the-us-part-i
281

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dangerous work for little personal payment.293 Poultry work is one of the most hazardous industries
for prison laborers, causing multiple injuries on a regular basis.294
The bulk of the money earned by inmate labor goes directly into the state coffers, which
can reap millions to hire out its workers.295 Alabama prisoners, for example, only get 13 cents out
of every dollar earned.296 And there is no imperative to pay prison laborers for their work.297 In
sum, prison farming has too many parallels with the old slave plantation system for comfort.

B. The North.
Prison labor in the Northern states was far more factory-like than that of the South. At
Illinois’ Joliet Penitentiary in the late 1860’s, for example, all 1,160 inmates were sentenced to
hard labor.298 Joliet inmates manufactured boots, shoes, brooms, cigars, army tents, and an array
of other items all for sale on the open market.299 It was so large that running the labor aspect of
the prison was seen as comparable to running “eight to ten large manufacturing establishments.”300
By 1872, prison officials found it simpler to simply have private manufacturers use inmates to
create goods within prison walls, supplying machinery, foremen, and raw materials.301
Like Joliet, hard labor spread liberally in Northern industrial prisons between 18201890.302 This transformation of penitentiaries to inmate labor sites helped cement the country’s
correctional facilities into “large-scale, complex factories,” all producing goods to sell at market.303
Because so much commercial industry came to rely upon prison labor, there was great pressure on
penitentiary officials to keep inmates incarcerated as long as possible.304
The factory-like conditions of Northern penitentiaries and their immense manufacturing
abilities did have one important aspect in common with Southern criminal justice: devotion to
profit. No matter where they were located, state correctional facilities focused on using inmates
for “productive labor for large scale, highly organized, profit-seeking enterprises.”305 These
industrial prisons helped feed and nurture the capitalist focus on profit, 306 a nationwide trend
293

See Kristi Graunke and Will Tucker, Why Incarcerated People in Poultry Plants Deserve Better, THE MARSHALL
PROJECT (August 13, 2018), https://www.themarshallproject.org/2018/08/13/why-incarcerated-poultry-workersdeserve-better?utm_medium=email&utm_campaign=share-tools&utm_source=email&utm_content=post-top
294
Id.
295
See UNSAFE AT THESE SPEEDS, SOUTHERN POVERTY LAW CENTER (March 1, 2013),
https://www.splcenter.org/20130228/unsafe-these-speeds#worker-safety
296
Graunke & Tucker, Poultry Plants, at id.
297
Ryerson, Prison Workers Are Essential, at id.
298
SEE HENRY KAMERLING, CAPITAL AND CONVICT: RACE, REGION, AND PUNISHMENT IN POST–CIVIL WAR
AMERICA 80 ( 2017).
299
Id.
300
Id.
301
Id. at 88.
302
MCLENNAN, CRISIS OF IMPRISONMENT, at 6.
303
KAMERLING, CAPITAL AND CONVICT, at 84.
304
Id. at 89.
305
MCLENNAN, CRISIS OF IMPRISONMENT, at 6.
306
KAMERLING, CAPITAL AND CONVICT, at 82.

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during which the “broad hegemony of market values”307 flowered. Both Northern and Southern
states did not hesitate to use a captive workforce to help boost industrial profit.308 In doing so,
“the penal machinery of the state did not provide punishment for crime but instead served as a
clearinghouse for private individuals to hire out cheap forced labor.”309
Prison labor in the North ran into more opposition than the South, however, mostly from
independent manufacturers and early union organization. As the 20th century neared, the financial
threat of inmate labor became more pointed, and free/organized labor's conflict with correctional
industries grew.310 In the 1880’s and 1890’s, free labor forces began campaigned directly against
convict labor, particularly those inmates toiling under the hands of manufacturing enterprises.311
Many businesses were so incensed by the threat of prison labor that by 1886, a group of
industrialists met in Chicago to form the National Anti-Convict Contract Association.312
Organized labor and much industry both agreed that convict labor had to be eliminated.313
Naturally, Northern prisons resisted such movements, as convict labor continued to provide
not only a convenient work and manufacturing source, but also a reliable source of revenue for
state treasuries.314 By the time that depressions hit the United States in 1870 and 1890, however,
the resulting unemployment gave further power to union demands.315 The compromise was the
state use system: inmates could still work, but the state would be their only market and buyer.316
Thus prison-made goods would no longer compete on the free market, and inmates would no
longer compete with free workers for jobs.317 This labor compromise spread throughout most of
the country at the turn of the 20th century. 318 Nonetheless, the mistreatment of prisoners to better
extract profit was widespread enough nationwide that in 1901, W.E. Dubois pointed out: “the state
became a dealer in crime, profited by it so as to derive a net annual income for her prisoners.”319
The ability for states to contract out prisoner labor began shrinking during the first third of
the 20th century.320 By the 1920’s, the movement to end inmate labor for manufacturing was
widespread enough that it routinely made the papers. For example, in 1923, the New York Times
reported on a drive by garment manufacturers to ban goods made by prison labor.321 Describing
how prison-made garments comprised up to 40 percent of the clothing sold to wholesalers, the
307

ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863-1877, 478 (1988)
KAMERLING, CAPITAL AND CONVICT, at 83
309
Id. at 89.
310
Garvey, Freeing Prisoners’ Labor, at 359.
311
KAMERLING, CAPITAL AND CONVICT, at 90.
312
Garvey, Freeing Prisoners’ Labor, at 359.
313
Id.
314
Id. at 359-60.
315
Id. at 360.
316
Id.
317
Id.
318
See GLEN A. GILDEMEISTER, PRISON LABOR AND CONVICT COMPETITION WITH FREE WORKERS IN
INDUSTRIALIZING AMERICA, 1840-1890, 235, 240 (1987)
319
BRIAN JOHNSON, ED., DUBOIS ON REFORM: PERIODICAL BASED LEADERSHIP FOR AFRICAN Americans 87 (2005).
320
See Morgan O. Reynolds, Factories Behind Bars, NATIONAL CENTER FOR POLICY ANALYSIS (September 1,
1996), http://www.ncpathinktank.org/pub/st206?pg=3
321
See Ban Goods Made By Prison Labor: United Drive By Garment Manufacturers Against This Kind of
Competition, NEW YORK TIMES (August 19, 1923),
https://timesmachine.nytimes.com/timesmachine/1923/08/19/105108076.pdf?pdf_redirect=true&ip=0
308

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manufacturers promulgated the distribution of a special label to be affixed to all free labor-made
clothing, with licenses and fines to be distributed for its use.322 The manufacturers also called for
higher wages for prisoners, in order that the free labor goods could be more competitive in the
marketplace.323
This limitation on prisoner labor reached its height during the Great Depression, when 33
states banned the sale of convict-made goods in the free market.324 This crackdown was assisted
by the 1929 passage of the Hawes-Cooper Act325 and the 1935 Ashurt-Sumners Act,326 both of
which banned interstate commerce of prisoner-made goods, and limited prisoner labor to the
creation and sale of products to the state.327 Exceptions to this legislation, however, still allowed
goods made by convicts or prisoners on parole, supervised release or probation, or in any penal or
reformatory institution.328 Organized union concerns over prisoners commandeering jobs
ultimately led to a federal prohibition on convict labor for federally-funded public works
projects.329
C. Prison Labor For, and By, the Government
Even the Great Depression/New Deal era prohibitions on profit-making prison labor,
however, did not eradicate the practice entirely. In 1934, the federal government created the
Federal Prison Industries (“FPI,” alternately called “UNICOR”).330 FPI was a federal monopoly
managing prison labor programs, allowing federal prisoners to manufacture goods as long as they
were for government use.331 The idea was to provide work skills to inmates, allowing prison
workers to farm and build highways, all while conveniently reducing the cost of their
incarceration.332 By the advent of World War II, FPI offered prisoner-crafted products in over than
70 categories and operated 25 shops and factories.333
Post-World War II, FPI continued to expand, focusing on construction work.334 Inmate
laborers helped build at least half of the 31 federal prisons constructed in the 1950’s and 60’s.335
322

Goods Made By Prison Labor, at id.
Id.
324
Reynolds, Factories Behind Bars, at id.
325
Act of Jan. 19, 1929, ch. 79, 45 Stat. 1084 (codified at 49 U.S.C. § 11507).
326
Act of July 24, 1935, ch. 412, 49 Stat. 494 (codified at 18 U.S.C. §§ 1761-1762).
327
Cao, Made in the U.S.A, at 12
328
Ashurt-Sumners Act, 49 U.S.C. §§ 61-64.
329
1936 Walsh-Healey Act, 41 U.S.C. §6501-6511. See also Cao, at 12.
330
18 U.S.C. § 4122 (1994). § 4122(a) holds that tFPI determines “in what manner and to what extent industrial
operations shall be carried on in Federal penal and correctional institutions for the production of commodities for
consumption in such institutions or for sale to the departments or agencies of the United States, but not for sale to the
public in competition with private enterprise.”
331
Cao, at 14.
332
See Safia Samee Ali, Federal Prison-Owned 'Factories with Fences' Facing Increased Scrutiny, NBC NEWS
(Sept. 4, 2016), https://www.nbcnews.com/news/us-news/federal-prison-owned-factories-fences-face-scrutinyn639791
333
See Federal Prison Industries, Inc., History, FUNDING UNIVERSE, http://www.fundinguniverse.com/companyhistories/federal-prison-industries-inc-history/
334
FPI History, at id.
335
Id.
323

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By the 1980’s, FPI, which in 1977 adopted on the trade name UNICOR,336 had massively
expanded, based in part on the explosive growth of prisons and mass incarceration over the past
30 years.337 UNICOR spent $50 million dollars to build and expand facilities, assuming that inmate
numbers would continue to rise.338
Some have argued that FPI has a tremendous competitive advantage in the marketplace,
due to its ability to bypass the competitive bid process, reaping multi-million dollar government
contracts.339 FPI has also been the subject of many Justice Department investigations.340 The
corporation today runs approximately 83 prison factories in the U.S., with 12,000 inmates running
call centers and making various products for very low wages, roughly 23 cents to $1.15 per hour.341
Many government entities are legally required to buy products only from Federal Prison
Industries.342 These guaranteed contracts mean that FPI routinely obtains multi-million dollar
orders, as well as being able to participate in free market bidding where they can undercut any
competitors on costs.343 Ultimately, FPI/UNICOR earns approximately $500 million a year,344
relying on a guaranteed market for 150 different products.345
Most of the UNICOR profit, resulting from its very inexpensive labor costs and favored
bidding status, is returned to it .346 Prisoners are exempted from minimum wage requirements,347
and those inmates who have any criminal justice debt are required to ascribe half of their meager
paycheck to it.348
Further expanding its reach, UNICOR is now permitted to sell to certain
private companies, courtesy of the Consolidated and Further Continuing Appropriations Act of
2012.349
UNICOR has been criticized for allowing its prisoner workers to labor in unsafe conditions,
including exposure to toxic substances in an electronic waste recycling facility.350 From 2003 –

336
See Factories with Fences: 75 Years of Changing Lives 24, UNICOR,
https://unicor.gov/publications/corporate/CATMC1101_C.pdf
337
FPI History, at id.
338
Id.
339
Ali, Factories with Fences, at id.
340
Id.
341
Id.
342
Id.
343
Id.
344
See Katherine Stevenson, Profiting Off of Prison Labor, BUS. R. BERKELEY (July 6, 2020),
https://businessreview.berkeley.edu/profiting-off-of-prison-labor/
345
See Guy Gugliotta, From Federal Prisons to an Agency Near You, WASH. POST (July 15, 1997),
https://www.washingtonpost.com/archive/politics/1997/07/15/from-federal-prisons-to-an-agency-nearyou/331319f3-8edb-4184-a119-f73afdbf03ee/
346
Ali, Factories with Fences, at id.
347
FPI History, at id.
348
See Program Details, UNICOR, FED. BUR. OF PRISONS,
https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp
349
Stevenson, Profiting Off of Prison Labor, at id.
350
Ali, Factories with Fences, at id.

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2005, UNIXOR processed over 120 million pounds of e-waste.351 Specifically, toxic dust and
heavy metal contaminate from UNICOR’s electronics recycling program may have endangered
hundreds of inmate laborers who broke open old computer monitors to extract various
components.352 No personal protective equipment was provided to protect the workers.353
Airborne lead dust level at the prison recycling facility occasionally reached 50 times higher than
the federally accepted workplace level.354 Lead contamination can cause serious damage to
nervous and reproductive systems.355 The inmate workers alleged medical complaints resulting
from the contaminants that included skin lesions, lung and heart problems, cancer, short-term
memory loss, miscarriages and general pain.356 Although the type of dangerous working
conditions for inmate laborers has changed since the days of convict leasing and chain gangs,
evidently the lack of concern still persists.
During the COVID-19 pandemic, UNICOR showed a similar disregard for safety. Instead
of shutting down its factories for reasons of public health, UNICOR kept them open, only
providing masks for its inmate workers a few months into the epidemic.357 It was almost
impossible to socially distance in UNICOR’s workplaces, increasing the possibility of COVID-19
spread.358 Very few of the factories that remained open were providing essential materials.359 In
one prison, the UNICOR workers were segregated under quarantine due to fear of further virus
spread.360 Again, the blatant disregard for inmate health and safety is startling.
Many more prisoners, however, are incarcerated in state prisons. State prisoners perform
a much broader array of labor, much of it even less remunerative than the UNICOR prison wages.
State prison labor is licensed by the Prison Industry Enhancement Certification Program (PIECP),
a federal program that allows incarcerated people at qualifying state and local facilities to work a
selection of jobs, such as factory work and assembling and packaging products.361 PIECP pays
more highly than other prison jobs, sometimes even making “prevailing local wages.”362 Other
inmate laborers work for state-owned businesses, where wages range from 33 cents to $1.41 per
hour.363

351
See Brandon Sample, Prisoners Exposed to Toxic Dust at UNICOR Recycling Factories, PRISON LEGAL NEWS
(Jan. 15, 2009), https://www.prisonlegalnews.org/news/2009/jan/15/prisoners-exposed-to-toxic-dust-at-unicorrecycling-factories/
352
See Kristin Jones, Prison Work Program May Have Put Hundreds of Prisoners and Workers at Risk, ABC NEWS
(July 10, 2008), https://abcnews.go.com/Blotter/story?id=5349764&page=1
353
Sample, Toxic Dust, at id.
354
Jones, Prison Work Program, at id.
355
Id.
356
Id.
357
See Cary Aspinwall, Keri Blakinger, & Joseph Neff, Federal Prison Factories Kept Running as Coronavirus
Spread, MARSHALL PROJECT (April 10, 2020), https://www.themarshallproject.org/2020/04/10/federal-prisonfactories-kept-running-as-coronavirus-spread
358
Id.
359
Id.
360
Id.
361
See Overview, Prison Industry Enhancement Certification Program (PIECP), Bureau of Justice Assistance,
https://bja.ojp.gov/program/prison-industry-enhancement-certification-program-piecp/overview
362
See Wendy Sawyer, How Much Do Incarcerated People Earn in Each State, PRISON POLICY INSTITUTE (April
10, 2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/
363
Id.

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Through programs such as PIECP, state prisoners now work for a variety of private
industries, including making garments for Victoria’s Secret and JCPenney,364 crafting school
supplies, building dental protheses, working in a variety of food processing plants,365 and even
making cheese and farming tilapia for grocers such as Whole Foods.366 The wages for state
prisoners is usually less than that of federal prisoners.367 The average hourly wage of a state
prisoner is 86 cents per hour.368 State prison labor is a profitable industry for the state, with
revenues in the millions of dollars.369 As such it is something very difficult for state prisons to
give up, despite the bad working conditions, poor treatment, and serious underpayment of inmates,
as discussed below.
Part III: 21st Century Prison Labor: Modern Profiteering
Modern prison labor is tied closely to profit-making for both the state and private
companies. Along with standard in-prison work assignments, state and federal prisoners do an
enormous array of jobs, ranging from oil cleanup to fire-fighting to making U.S. Military defense
armor. The thread that ties these jobs together? The chance for revenues to be made on the backs
of inmate labor, despite danger or risk of death.
A. Cleaning Up Natural Disasters
Prisoners have come in extremely handy for remedying U.S. natural and man-made
disasters. In Louisiana, for example, instead of hiring any unemployed residents following the
2010 Gulf Coast oil spill, British Petroleum (BP) instead chose to hire state prisoners to cleanse
the coastline.370 The inmates only received “flimsy coveralls and gloves” as protectant against the
crude oil, which was far less protection than civilian workers obtained.371 Why prisoners?
Because, by hiring inmates, BP paid far less for their coastal cleanup.372 In addition, BP also
obtained workers who were unlikely to publicly complain, despite the danger and discomfort such
work requires.373 Finally, BP earned valuable tax write-offs for their use of inmate labor.374
364
See David Leonhardt, As Prison Labor Grows, So Does the Debate, NEW YORK TIMES (March 19, 2000),
https://www.nytimes.com/2000/03/19/business/as-prison-labor-grows-so-does-the-debate.html
365
See Caroline Winter, What Do Prisoners Make for Victoria’s Secret, MOTHER JONES (July 2008),
https://www.motherjones.com/politics/2008/07/what-do-prisoners-make-victorias-secret/
366
See Sarah Shemkus, Beyond Cheap Labor: Can Prison Work Programs Benefit Inmates?, GUARDIAN (December
9, 2015), https://www.theguardian.com/sustainable-business/2015/dec/09/prison-work-program-ohsa-whole-foodsinmate-labor-incarceration
367
See Transcript, The Uncounted Workplace, The Indicator from Planet Money, OPB (June 29, 2020),
https://www.npr.org/transcripts/884989263
368
See Angela Hanks, How to End Prison Labor Exploitation and Invest in Incarcerated People, FORBES (Aug. 18,
2018), https://www.forbes.com/sites/angelahanks/2018/08/23/from-exploitation-to-investment-how-to-end-lowwage-prison-labor/?sh=37d777cd5018
369
Uncounted Workplace, at id.
370
See Abe Louise Young, British Petroleum Hires Prison Labor to Clean Up Spill While Coastal Residents
Struggle, NATION (July 21, 2010), https://www.thenation.com/article/archive/bp-hires-prison-labor-clean-spillwhile-coastal-residents-struggle/
371
Smith, Inmates: Our Defenders, at id.
372
Young, Prison Labor to Clear Up Spill, at id.
373
Id.
374
Id.

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Louisiana has an extremely high imprisonment rate—one of the highest in the nation—and
houses many of its prisoners in “parish jails.”375 Both Louisiana prisons and parish jails provide
free inmate labor to both the state and private companies.376 Well-behaved inmates can qualify
for work-release “trustee” positions in their last 3 years of their sentences, which allows them to
be paid near market rate for their jobs. However, hiring inmates still makes economic sense for
private companies, because these prison “trustee” workers are covered under the Work
Opportunity Tax Credit, which rewards private-sector employers for hiring risky target groups.
Businesses earn a tax credit of $2,400 for every work release inmate hired, plus up to 40 percent
of the wages they pay annually to “target group workers.”377
Louisiana inmates routinely clean up oil spills or work in the offshore drilling industry.378
Indeed, as natural disasters become more frequent, prison labor is increasingly relied upon to help
preparation and recovery for weather-related emergencies. .379 In Louisiana, however, as in many
other states, its work-release programs are primarily designed to benefit its operators over its
participants.380 The beneficiaries of state inmate labor include parish sheriffs, private contractors,
and local companies, many of whom are involved in the oil and gas sector.381 Pay is often low for
these oil and gas inmate workers—a little less than a dollar an hour—despite 12-16 hour days and
dangerous working conditions.382 Sometimes inmates are housed in converted shipping containers
for temporary clean-up jobs, similar to the windowless wagons in which chain gang workers
slept.383
Offshore drilling jobs, including oil spill remediators and pipeline construction, make the
most money for those companies hiring work-release inmates.384 Local and state facility operators,
including the county sheriff’s office, can end up retaining up to 64% of a prisoner’s gross wages,
applied to room and board.385 The gross wages can really add up. In 2015, for example, Louisiana
correctional facilities operators received $35.5 million from inmate laborer’s wages, in addition to
approximately $4 million from commissary sales.386
Inmates are also assigned to clean up natural disasters without pay, benefiting both the state
and private industry. In Houston, TX, for example, prisoners were put to work assembling sand
bags in preparation for 2017’s Hurricane Harvey, and were not evacuated until 3 days after the
375

Id.
Id.
377
Id.
378
See Carly Berlin, How Louisiana’s Oil and Gas Industry Uses Prison Labor, SOUTHERLY MAG. (March 23,
2020), https:.southerlymag-how-louisianas-oil-and-gas-industry-uses-prisonlabor%2F+&cd=15&hl=en&ct=clnk&gl=us&client=firefox-b-1-d
379
Id.
380
Id.
381
Id.
382
Id.
383
Young, Prison Labor to Clear Up Spill, at id.
384
Berlin, Louisiana’s Oil and Gas Industry, at id.
385
Id.
386
See Oversight and Benefits of the Transitional Work Program 2, Dep’t Pub. Safety & Corrections, LOUISIANA
LEGISLATIVE AUDITOR (April 13, 2016),
https://app.lla.state.la.us/PublicReports.nsf/87D9DDAEC96EFE3A86257F94007293F3/$FILE/0000E78F.pdf
376

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storm made landfall.387 None of the prisoners were paid for their work.388 Similarly, inmates from
the Louisiana State Penitentiary were used to sandbag the premises in preparation for Hurricane
Katrina.389
Likewise, Florida required its prisoners to work as an unpaid labor crew in cleaning up
debris from Hurricane Irma in 2017.390 Hundreds of Florida inmate laborers populated both
hurricane and road debris cleanup crews after the storm.391 Like Louisiana, Florida is another state
that greatly profits from inmate labor, saving an estimated $59 million dollars per year in state
costs from their work.392
More recently, scores of incarcerated Californians were sent to the front lines of massive
California wildfires to battle sometimes uncontrollable blazes. California has had an inmate
firefighting brigade since 1915, but the program truly expanded during World War II, when many
civilian firefighters were overseas.393 The inmate firefighters now live full time in special inmate
fire camps, which are located near potential fire zones.394
There are definite benefits to working as an inmate firefighter, such as higher hourly pay
(one dollar an hour fighting fires),395 far looser restrictions, and reductions in sentence length.396
However, the inmates are still exposed to dangerous working conditions, routinely work grueling
24 hour shifts, and get only two-three weeks of formal training.397 In contrast, civilian firefighters
get three years of training and apprenticeship.398 Inmate firefighters are four times more likely to
get injured and eight times more likely to suffer from smoke inhalation,399 and several have died
doing such work.400 In addition, until recently, there was no way for ex-inmate firefighters to be

387

See Polly Mosendz, When Do You Move Prisoners Out of a Storm’s Path, BLOOMBERG NEWS (September 8,
2017), https://www.bloomberg.com/news/articles/2017-09-08/when-do-you-move-prisoners-out-of-a-hurricane-spath
388
Id.
389
See Jordan Smith, Inmate Populations in a Disaster: A Labor Force, a Vulnerable Population, and a Hazard 2,
LSU MASTERS THESES (2016) (unpublished manuscript on file with author),
https://digitalcommons.lsu.edu/cgi/viewcontent.cgi?article=5492&context=gradschool_theses
390
See Jessica Lipscomb, Unpaid Florida Prisoners Being Used to Clean Up After Hurricane Irma, MIAMI NEW
TIMES (September 28, 2017), https://www.miaminewtimes.com/news/unpaid-florida-prison-inmates-being-used-onhurricane-irma-cleanup-labor-crews-9701867
391
Id.
392
Id..
393
See Katrina Schwartz and Kevin Stark, What’s Next for Incarcerated Firefighters, KQED (November 12, 2020),
https://www.kqed.org/news/11846622/whats-next-for-incarcerated-firefighters-in-california
394
Id.
395
Id.
396
Id
397
See Jared Brock, As California Wildfires Raged, Incarcerated Exploited for Labor, USA TODAY (November 11,
2020), https://www.usatoday.com/story/opinion/policing/2020/11/11/california-wildfires-raged-incarceratedexploited-labor-column/6249201002/
398
See Jaime Lowe, The Incarcerated Women Who Fight California’s Fires, NEW YORK TIMES (August 31, 2017),
https://www.nytimes.com/2017/08/31/magazine/the-incarcerated-women-who-fight-californiaswildfires.html?action=click&module=RelatedLinks&pgtype=Article
399
See Abby Vesoulis, Inmates Fighting California Wildfires Are More Likely to Get Hurt, Records Show, TIME
(Nov. 16, 2018), https://time.com/5457637/inmate-firefighters-injuries-death/
400
Lowe, Incarcerated Women, at id.

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hired by the state as full time firefighters post-release, as EMT certification would not allow
individuals with a felony to apply until 10 years had passed.401
Over a third of California firefighters are incarcerated,402 and inmate fire crews have
recently made up to 50 to 80 percent of fire personnel.403 Using inmate firefighters is a huge cost
savings to the state, which saves approximately $100 million a year from using an inmate wildfire
fighting force.404 Not only do inmate crews perform over 3 million hours of emergency response
work per year, but also in non-fire season, they do projects such as clearing debris from streams,
picking up litter along state highways and constructing hiking trails.405 Inmate firefighters are so
valuable to the state that in 2014, when overcrowded California prisons were being litigated, the
then-state attorney general Kamala Harris argued against shrinking inmate populations, because
any reduction in inmates would severely impact fire camp participation.406
Thirty states nationwide rely on prison labor to respond to emergencies and disasters,
whether natural or man-made.407 These jobs range from those requiring minimal instruction, such
as making sandbags and clearing debris, to those which require specialized training, such as
firefighting and cleaning up hazardous materials.408 Inmates are also utilized in assisting with
civilian evacuations, multi-transportation incidents, multi-casualty and terrorism events, and
search and rescue missions, despite not receiving any specific training for doing so.409
Southern states comprise 37% of states using of inmate labor forces for their state-level
emergency planning, approximately double the amount of Northeast states.410 Additionally, those
states with higher inmate populations tended to rely more heavily on inmate labor forces for
emergencies.411 Finally, 31% of states using inmate labor forces for emergencies had overcrowded
prisons.412

401

Brock, Exploited for Labor, at id.
Id.
403
Id.
404
See Jaime Lowe, In the Line of Fire, NYT (August 20, 2020),
https://www.nytimes.com/2020/08/30/podcasts/the-daily/california-wildfires-prisoners.html
405
Vesoulis, Inmates Fighting California Wildfires, at id.
406
Lowe, Incarcerated Women, at id.
407
Smith, Inmate Populations in a Disaster, at 27.
408
See J. Carlee Purdum, Disaster Work is Often Carried Out by Prisoners—For as Little as 14 Cents an Hour,
TEXAS A&M TODAY (September 15, 2020), https://today.tamu.edu/2020/09/15/disaster-work-is-often-carried-outby-prisoners-for-as-little-as-14-cents-an-hour/
409
See J. Carlee Smith, Inmates: Our Defenders in Disaster, 8 NATURAL HAZARDS OBSERVER (Jan. 3, 2017),
https://hazards.colorado.edu/article/inmates-our-defenders-in-disaster
410
Smith, Inmate Populations in a Disaster, at 27.
411
Id. at 31.
412
Id. at 33.
402

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Some states, including Alabama,413 Georgia,414 and Colorado,415 have explicit directives
relying on inmate labor during disasters or public emergencies. As a low-cost substitute for
civilian workers in a time of crisis, inmate labor is doubly valuable in that it can be mandated to
appear, providing large savings for state and local governments.416 Some inmate laborers are not
paid at all for emergency work under state guidelines.417 In addition, FEMA reimburses states for
“prisoner transportation to the worksite and any extraordinary costs of security guards, food and
lodging.”418
Disasters include public health emergencies as well. During the recent COVID-19
pandemic, inmate laborers not only helped with manufacturing of protective equipment and hand
sanitizer, but also did more intimate and potentially dangerous work, such as laundering potentially
contaminated hospital laundry,419 disinfecting cleaning supplies, 420 and digging mass graves for
those who died of the virus.421 In New York, having inmate workers dig mass graves was part of
a 2008 emergency pandemic plan drawn up by New York City’s medical examiner.422
Likewise, inmate laborers in Indiana were tasked with killing chickens infected with avian
flu, a potentially deadly threat to humans.423 Given great concerns over a very infectious bird virus,
Indiana began training some of its prisoners to safely transport the chickens before asphyxiating
them, while wearing respirators for some protection.424
Given the large, easily accessible, and inexpensive (or free) labor force available for
disaster and emergency response, it is not surprising to find many states are incentivized to
continue or increase incarceration rates. Specifically, “the utilization of inmate labor forces in the
disaster context may suggest a deeper level of entrenchment with regards to the extent in which
413

See Department of Corrections Disaster Assistance and “State of Emergency” Plan, ALABAMA DEP’T OF
CORRECTIONS (January 19, 2000), http://www.doc.alabama.gov/docs/AdminRegs/AR010.pdf “The major support
of the DOC will be manpower,” id. at 2.
414
See Rule 125-3-5-.04, Work Conditions, Rules and Regulations of the State of Georgia (March 26, 2021),
http://rules.sos.state.ga.us/GAC/125-3-5-.04?urlRedirected=yes&data=admin&lookingfor=125-3-5-.04
415
CO Rev Stat § 17-24-124 (“inmates housed in certain prison facilities throughout the state form a labor pool that
could be safely utilized to fight forest fires, help with flood relief, and assist in the prevention of or clean up after
other natural or man-made disasters.”)
416
Purdum, Disaster Work, at id.
417
Id.
418
See Public Assistance Program and Policy Guide, FEMA (July 1, 2020),
https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf
419
See Emma Ellis, Covid-19's Toll on Prison Labor Doesn't Just Hurt Inmates, Wired (May 19, 2020),
https://www.wired.com/story/covid-19-prison-labor/
420
See J. Carlee Purdum, States Are Putting Prisoners to Work Manufacturing Coronavirus Supplies, THE
CONVERSATION (April 21, 2020), https://theconversation.com/states-are-putting-prisoners-to-work-manufacturingcoronavirus-supplies-135290
421
See Geoff Herbert, Rikers Island Inmates Offered $6 Per Hour to Dig Mass Graves in NYC, SYRACUSE.COM
(April 1, 2020), https://www.syracuse.com/coronavirus/2020/04/report-rikers-island-inmates-offered-6-per-hour-todig-mass-graves-in-nyc.html
422
Id.
423
See P.J. Huffstutter, States Enlist Prisoners, Plan Biosecurity to Combat Avian Flu Threat, REUTERS (May 31,
2015), https://www.reuters.com/article/us-health-birdflu-usa/states-enlist-prisoners-plan-biosecurity-to-combatavian-flu-threat-idUSKBN0OG0FC20150531
424
Id.

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states rely upon inmate labor participation in local economy, and may be serving to further
incentivize higher rates of incarceration.”425 In this way, using inmate labor for emergency and
disaster response can promote harsher penal policies and more hesitance in repealing older
policies.426
Private companies and individuals are also eager to take advantage of the inmate labor cost
savings when responding to natural disasters. In Southern California, for example, a neighborhood
community group hired a group of state inmates to cut brush, remove debris, and spray anti-weed
herbicide on any excess vegetation, since inmate labor was so much cheaper than civilian labor.427
The economic exploitation that occurs with most inmate labor is doubly troubling in times
of emergency or disaster, where often prisoners’ health, safety, and even life is risked to ensure
cost-savings on the part of governments or private industry.
B. Profit for Profit’s Sake
In the 21st century, “the scale of private industry’s involvement in the contemporary
criminal legal system is staggering.”428 Private industry plays a role in almost every aspect of
mass incarceration and criminal justice, from the smallest to the largest parts.429 Many of these
companies profit off of “commercial transactions that transpire in the shadow of criminal law,”430
reaping revenue out of the incarcerated toil of others.
Economic analysis of both state and federal inmate labor estimated that in 2003, the fruits
of prisoner industry created over $2 billion worth of commodities, both goods and services.431
More recent numbers are harder to obtain. Inmate workers are usually excluded from official
employment statistics, both state and federal, and there is little economic research done in this
area.432 Because there has not been a nationwide census of prisons since 2005, there is no central
source for information.433 In 2005, there were approximately 1.5 million prisoners working in and
outside of correctional facilities, with roughly 600,000 people in the manufacturing sector.434 At
the time, that represented over 4% of all manufacturing jobs in the country.435

425

Smith, Inmate Populations in a Disaster, at 40.
Id. at 41.
427
Id. at 15.
428
Brian Highsmith, Commercialized (In)Justice: Consumer Abuses in the Bail and Corrections Industry 1,
NATIONAL CONSUMER LAW CENTER (March 18, 2019), https://www.nclc.org/issues/commercialized-injusticeconsumer-abuses-in-the-bail-and-corrections-industry.html.
429
Id. at 1.
430
Id. at 7.
431
See Asatair Bair, An Economic Analysis of Prison Labor in the United States vi, ProQuest Dissertation
Publishing (2004), https://www.proquest.com/docview/305177313
432
See Darius Rafieyan and Cardiff Garcia, The Uncounted Workforce, NPR (June 29, 2020),
https://www.npr.org/transcripts/884989263
433
Id.
434
Id.
435
Id.
426

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C. Food Harvest and Production
The actual fruits of inmate labor slip into every aspect of modern life. Food and
agribusiness are one highly lucrative example. For example, Leprino Foods, a $3 billion company
supplying mozzarella to three nationwide pizza chains--Papa John’s, Pizza Hut, and Domino’s—
uses Colorado Corrections Inc. to source its buffalo milk.436 Leprino was able to purchase the
buffalo milk for $1.19 a pound, half of what it would normally cost on the open market, while
paying prisoners only $4.50 a day.437 Very few customers are aware of the cheese sourcing,
however, as Leprino and Colorado Corrections have kept their business very quiet.438
Other large, nationwide food companies have been likewise quietly sourcing much of their
work from inmate labor. Hickman Farms, which supplies most of the eggs in southwest Arizona,
uses incarcerated workers at their poultry farms, reaping $18.4 million over 2018-2020 from the
collaboration.439 Dairy Farmers of America, a dairy conglomerate supplying 30% of the nation’s
raw milk to companies such as Borden, T.G. Lee, Plugrá, and Breakstone’s Butter, purchases much
of its milk from Colorado and South Carolina correctional facilities, collecting $10.8 million in
revenues.440 Taylor Farms, producer of salads and salad kits for Walmart, Kroger, and Ralph’s,
uses Arizona Correctional Industries workers, making $5.3 million over 2019-2020..441
Tropaquatics, Inc., a fish distributor, purchases its tilapia from Wyoming Brand Industries, a
corrections-based company and formerly used Colorado Correctional Industries for a supplier.442
Often a state’s correctional facilities produce and process a wide range of food products.
In Texas, inmate workers raised 30 crops that produced more than 11.7 million pounds of food in
2017, both for commercial sale and for feeding prisoners within correctional facilities.443 These
included harvesting 123.7 million pounds of cotton, grains, and grasses; producing 5 million eggs;
processing 22.7 million pounds of meat; canning 297,143 cases of vegetables; and producing
11.9 million pounds of food.444 All of this is produced on the former plantation fields owned and
operated by the Texas Department of Criminal Justice, some 130,000 agricultural acres.445
Forty-six states run some sort of agricultural production within their prison system, and
20% of those states have large scale operations.446 This means that over 30,000 inmates labor, for
either little or no money, in highly profitable farming or food-related positions.447 In addition,
436

See H. Claire Brown, How Corporations Buy and Sell Food Made with Prison Labor, THE COUNTER (May 18,
2021), https://thecounter.org/how-corporations-buy-and-sell-food-made-with-prison-labor/
437
Id.
438
Id.
439
Id.
440
Id.
441
Id.
442
Id.
443
See The Prison Food Machine 10, Eating Behind Bars, IMPACT JUSTICE, https://impactjustice.org/wpcontent/uploads/IJ-Eating-Behind-Bars-Release4.pdf
444
Id. at 10.
445
See Ashante Reese & Randolph Carr, Overthrowing the Food System’s Plantation Paradigm, CIVIL EATS (June
19, 2020), https://civileats.com/2020/06/19/op-ed-overthrowing-the-food-systems-plantation-paradigm/
446
See The Prison Industrial Complex and Agricultural Labor 1, HEAL FOOD ALLIANCE,
https://drive.google.com/file/d/1ZWdBH5zlKbV6K6subbGMm4nUMY3_ZZgJ/view
447
Id.

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agricultural work is frequently exempt from minimum wage requirements, so prisoners usually are
paid very little for their toil.448 In some prisons that produce food or process meat and dairy, such
as in Arkansas and Indiana, the inmates don’t even get to eat what they grow, since most of it is
shipped out for sale.449
These prison industrial food production arrangements require that inmates labor on farms
and in dairies for little to no money, usually lacking basic labor protections.450 Moreover, most
of this prison-sourced food and labor is kept very secretive—to the point where sometimes, not
even the food companies know about it. In 2014, for example, Fortune Magazine ran a story
highlighting how Whole Foods, among other companies, sold goat cheese, trout, and tilapia
produced by inmate laborers in Colorado, and had done so since 2011.451 All three products were
made by inmates working for Colorado Correctional Industries, which in 2014 employed over
1,800 prisoners.452 The working inmates made between 74 cents to $4 daily, and were eligible for
performance bonuses.453
After customer and advocacy groups protested, Whole Foods agreed to stop selling the
goods in 2016.454 Whole Food defended its practice, contending that “supporting suppliers who
found a way to be part of paid, rehabilitative work being done by inmates would help people get
back on their feet and eventually become contributing members of society."455 Critics, however,
responded that Whole Foods was making profits off the backs of the poor and imprisoned,456
exploiting both prisoners and existing tax law for increased revenues.457
Recent farm labor shortages over the past decade have also shunted more inmate laborers
into food production. In Idaho, for example, prisoners have been tasked with picking, sorting, and
packing potatoes during the potato harvest, including in open fields.458 Other states with laborintensive crops such as apples, onions, and tomatoes, like Washington and Arizona, have followed
suit.459 After a nationwide crackdown on undocumented farm labor, many farmers and
agribusinesses now rely on state prisoners to harvest their produce for the market.460 The reliance

448

Id. at 2.
Prison Food Machine, at 11.
450
Brown, How Corporations Buy and Sell Food, at id.
451
See Jennifer Alsever, Prison Labor’s New Frontier: Artisanal Foods, FORTUNE (June 2, 2014),
https://fortune.com/2014/06/02/prison-labor-artisanal/
452
See Whole Foods to Stop Selling Products Made by Prisoners, CHICAGO TRIBUNE (September 30, 2015),
https://www.chicagotribune.com/business/ct-whole-foods-prisoners-20150930-story.html
453
Id.
454
Id.
455
See Susanna Kim, Whole Food Suppliers Defend Using Prison Labor, ABC News (October 15, 2015),
https://abcnews.go.com/Business/foods-suppliers-defend-prison-labor/story?id=34258597
456
Whole Foods to Stop Selling, at id.
457
Kim, Whole Food Suppliers Defend, at id.
458
See Joel Millman, Captive Labor on the Farm, WALL ST. J. (October 18, 2011),
https://www.wsj.com/articles/SB10001424052970204774604576630972860034248
459
See Stian Rice, Convicts Are Returning to Farming—Anti-Immigrant Policies Are the Reason, The World (June
11, 2019), https://www.pri.org/stories/2019-06-11/convicts-are-returning-farming-anti-immigrant-policies-arereason
460
Millman, Captive Labor on the Farm, at id.
449

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of agribusiness and farming on cheap labor necessitates the use of a captive labor force such as
prisoners.461
Many farms and farming entities keep their employment of prisoners under the radar to
minimize criticism, despite its prevalence.462 Major farming businesses such as SunGlo of Idaho
Inc., Walters Produce Inc., High Country Potato Inc., and Floyd Wilcox & Sons Inc. all have used
prison labor for years, although none would confirm it.463 In part, this is likely due to high level of
profit reaped from using prisoner labor, which pays inmate workers very minimally. In Arizona,
for example, inmates doing farm work through Arizona Correctional Industries (ACI) only receive
three to four dollars an hour, and that is before various mandatory correctional deductions.464 In
contrast, minimum wage for most Arizona farm workers is $11.00 an hour.465
In Montana, dairy conglomerate Darigold ended its 30-year contract with the Montana
State Prison, due to Costco’s recent decision to phase out all prison-made goods and foods.466
Darigold, a marketing and processing subsidiary of the Northwest Dairy Association, is comprised
of 350 dairy producers in Washington, Oregon, Idaho and Montana, and a major milk supplier to
Costco.467 The majority of the prison’s raw milk was sold directly to Darigold.468 This contract
cessation is poised to cost Montana’s corrections industry enterprise approximately $1.5 million
dollars, if not more.469 To replace the loss in revenue, Montana Correctional Enterprise is planning
on raising pheasants for hunting purposes, among other ventures.470
One prominent reason for Costco terminating its contract with Montana Correctional
Enterprises was over concern regarding prison wages and "the reduced transparency of prison
systems in general."471 Specifically, Costco’s Global Policy on Prison Labor requires, among other
things, that “all gross wages paid be comparable to any non-prisoners for the same type of work
in the same geographic area.”472 Because wages are so low for most prisoner labor, Costco could
not follow its own policy and still buy food products from correctional facilities.
Food for children’s school lunches is also often quietly processed by inmate workers.
Florida’s Prison Rehabilitation and Diversified Enterprises (PRIDE), a privately held non-profit
corporation operating the state’s 41 prison labor programs, manufactures a large amount of
461

Rice, Convicts Returning to Farming, at id.
Millman, Captive Labor on the Farm, at id
463
Id.
464
See Bill Branson, Arizona Correctional Industries Partnering with Private Sector Companies, Better Gov.
Competition (July 19, 2011), http://bgc.pioneerinstitute.org/arizona-correctional-industries-partnering-with-privatesector-companies/
465
Rice, Convicts Returning to Farming, at id.
466
See Seaborn Larson, Montana State Prison Dairy Loses $1.5m After Darigold Cuts Contract, MONTANA
STANDARD (May 20, 2021), https://mtstandard.com/news/state-and-regional/govt-and-politics/montana-state-prisondairy-loses-1-5m-after-darigold-cuts-contract/article_d849d555-8259-5c77-a4eb-57580c86dac3.html
467
Id.
468
Id.
469
Id.
470
Id.
471
See Statement on Prison Labor, 2020 Update, COSTCO WHOLESALE CORP. (2020),
https://investor.costco.com/static-files/b19aaa23-709f-4606-a408-4a0f00052b83
472
Id. at 1.
462

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processed beef, chicken, and pork for Florida school lunch program.473 Like many other areas of
prison labor, however, the prisoner-school lunch association is kept quiet.
C. State-run “Independent” Correctional Industries
Arizona, Idaho, California, and the majority of other states source their inmate labor pools
from state-run correctional industries or enterprises, which organize and parcel out teams of
prisoners to work for various private businesses.474 These correctional industries are self-funded,
not receiving any taxpayer money, and usually run a gamut of programs to send inmates to work
at private companies.475 They usually operate as a private sector business.476 Many state agencies
are required to buy products from these quasi-privatized state correctional industries.477 This
includes public universities.478 Every state but Alaska has a correctional enterprise business,
staffed by inmate labor to create various goods.479
Like with all other prisoner labor, state correctional enterprises pay incarcerated people a
tiny fraction of what they would make on the free market for their work.480 Indeed, inmate wages
have gone down in the past 20 years.481 Alabama, Arkansas, Georgia, Oklahoma, and Texas pay
their prisoners nothing at all, despite profiting handsomely from their labor.482
Using a captive labor force brings tremendous profit to both the prisons and the outside
companies. For example, between 2015-16, CALPIA, California’s correctional industry, made
over $2 million in profit from agriculture and food.483 Likewise, Corcraft, New York’s correctional
industry, averages around $50 million in sales annually, with all profits going to state revenue.484
Despite its high revenues, approximately $30-40 million a year, Corcraft only pays inmate laborers
an average $0.26 an hour.485 In comparison, New York’s minimum wage varies from $15/hour in

473

See Mike Elk & Bob Sloan, The Hidden History of ALEC and Prison Labor, THE NATION (August 1, 2011).
See Olivia Weitz, With Labor Shortage, Idaho Inmates Learn Farm Work, SPOKESMAN REVIEW (August 26,
2017), https://www.spokesman.com/stories/2017/aug/26/with-labor-shortage-idaho-inmates-learn-farm-work/
475
Id.
476
About Us, OREGON CORR. ENTER., https://oce.oregon.gov/content/OCE_About_Us.asp
477
Lilah Burke, Public Universities, Prison Made Furniture, INSIDE HIGHER ED. (February 14, 2020),
https://www.insidehighered.com/news/2020/02/14/public-universities-several-states-are-required-buy-prisonindustries
478
Id.
479
Id.
480
See State and Federal Prison Wage Policies and Sourcing Information, PRISON POLICY INITIATIVE (April 10,
2017), https://www.prisonpolicy.org/reports/wage_policies.html
481
Wendy Sawyer, How Much Do Incarcerated People Earn in Each State, PRISON POLICY INITIATIVE (April 10,
2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/
482
Id.
483
Prison Industrial Complex, at 2.
484
See Christopher Robbins, New York State's New Hand Sanitizer is Made by Prisoners Paid an Average 65 Cents
An Hour, GOTHAMIST (March 9, 2020), https://gothamist.com/news/new-york-states-new-hand-sanitizer-madeprisoners-paid-average-65-cents-hour
485
See Redmond Haskins and Bianca Tylek, FOIL Disclosure: Despite Millions in Revenue From NYS Agencies –
Over $340 Million Spanning Nine Fiscal Years –Corcraft Continues To Pay Incarcerated New Yorkers Pennies On
The Dollar 1-2, LEGAL AID NEW YORK CITY (March 12, 2020), https://legalaidnyc.org/wpcontent/uploads/2020/03/03-12-20-FOIL-Disclosure-Corcraft.pdf
474

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New York City to $11.80/hour upstate.486 Similarly, Minnesota’s correctional industry, Minncor,
sells numerous products to private companies while paying inmate workers very low wages, thus
turning a profit of approximately $13 million dollars in 2019.487 Finally, Oregon Correctional
Enterprises (OCE), Oregon’s corrections industry, made $28.5 million dollars in 2019, while
keeping inmate wages at approximately $1.25 an hour.488 Oregon also has a state law requiring
inmates to work 40 hours a week.489
These type of state correctional enterprises were first legalized by Congress in 1995 with
the Prison Industries Act (PIA).490 The PIA was initially designed “to encourage states and units
of local government to establish employment opportunities for prisoners that approximate private
sector work opportunities.”491 In addition, the Prison Industry Enhancement Certification Program
(PIECP) exempts certified state and local departments of corrections from normal restrictions from
selling prisoner-made goods in interstate commerce.492 PIECP also allows certified corrections
departments to sell more than $10,000 worth of prisoner-made goods to the Federal
government.493 State deductions/wage capture from prisoner wages under PIECP can be up to
80% of hourly monies,494 making inamte labor profitable for state corrections industries, if not for
themselves.
And yet despite all this profit gleefully being made, many companies are still remarkably
shy about admitting their use of prisoner labor. Numerous companies use subcontracts to work
with other businesses, who then are the ones to actually contract with the prison.495 In Minnesota,
for example, Plastech utilized the labor of 32 state inmates to work in its plastics company in
2020.496 Plastech is a major supplier for Fujitsu,497 but since the prisoners are only reported as
working for Plastech, there is no link between Fujitsu’s products and prison labor. Indeed,
Fujitsu’s own corporate responsibility guidebook for their suppliers forbids the use of forced labor,

486

Robbins, New York State's New Hand Sanitizer, at id.
Private Companies Producing with U.S. Prison Labor in 2020; Prison Labor in the U.S., Part II, CORPORATE
ACCOUNTABILITY LAB (August 5, 2020), https://corpaccountabilitylab.org/calblog/2020/8/5/private-companiesproducing-with-us-prison-labor-in-2020-prison-labor-in-the-us-part-ii
488
See Mark Wilson, Oregon Prison Industry Program Nets Record $28.5 Million as Prisoners Earn $1.25/Hour,
PRISON LEGAL NEWS (April 2, 2019), https://www.prisonlegalnews.org/news/2019/apr/2/oregon-prison-industryprogram-nets-record-285-million-prisoners-earn-125hour/
489
Id..
490
Elk & Sloan, Hidden History of ALEC and Prison Labor, at id.
491
Id.
492
Nancy E. Gist, Prison Industry Enhancement Certification Program 1, BUREAU OF JUSTICE,
https://www.ojp.gov/pdffiles/pie.pdf
493
Id.
494
Id. at 2.
495
See Bob Sloan, The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned,
PRISON LEGAL NEWS (March 15, 2010), https://www.prisonlegalnews.org/news/2010/mar/15/the-prison-industriesenhancement-certification-program-why-everyone-should-be-concerned/
496
See Minnesota, Prison Industry Enhancement Certification Program Certification & Cost Accounting Center
Listing 19, NCIA, https://df1d6e07-2d3a-49dd-bb43170ddf635f64.usrfiles.com/ugd/df1d6e_8d3b0797c98b469c831c436f5db359b4.pdf
497
See Fujitsu Honors 13 Companies with 2017 Fujitsu Supplier Award, FUJITSU (May 29, 2018),
https://www.fujitsu.com/caribbean/about/resources/news/press-releases/2018/fnc-20180529.html
487

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which the company defines as “inhumane prison labor in harsh environments.”498 The Fujitsu
guidebook also directs suppliers to “pay appropriate wages,” which is defined as paying the legal
minimum wage or more.499 Thus either Fujitsu is unaware that Plastech is using prison labor in
violation of its corporate responsibility guidelines, or is simply ignoring this abuse.
In sum, inexpensive prison labor is a strong force limiting serious criminal justice
reform.500 This built-in, extremely inexpensive workforce benefits both the state prison industry
and the companies that feed off of it, as both utilize underpaid labor to keep operating costs low
and profits high.501 It is yet another way that profits continue to be squeezed out of carceral
punishment—simply the latest, most palatable iteration.

Part IV: How the Law Helps Maintain Profit in Carceral Punishment
As Noah Zatz argues, “prisoners' labor is located outside the economy on conventional
maps of social spheres drawn by lawyers, demographers, and economists.”502 In large part, this is
because of the way the law categorizes inmate labor—separate and distinct from normal, taxable
employee labor, despite the profits it garners for both non-profit and for-profit companies. Prison
labor, like family labor, is classified as “non-market work,”503 thus allowing all sorts of loopholes.
A. Classification of inmate workers
One reason that profits are so easily manufactured from prison labor is because U.S. law
permits allows companies to classify inmate workers as something other than “employees.” In
general, when workers are employees, the entity that employs them must withhold and pay
employment taxes, as well as file employment tax returns.504
Prisons, businesses, and various other actors do not want imprisoned laborers to be classified
as employees, because the Fair Standards Labor Act would then require the inmates to be paid
minimum wage and overtime.505 The exemption of inmate workers from employee status is
embedded in several different areas of the law, as detailed below.

498

See Respect for Human Rights and Labor, Fujitsu Group Supply Chain Corporate Social Responsibility
Guidebook 1, FUJITSU LTD. (September 2015),
https://www.fujitsu.com/us/Images/FJ%20CSR%20Guidebook%20v2.0%20En.pdf
499
Respect for Human Rights and Labor, CSR Guidebook, at 2.
500
Prison Labor in the U.S., Part II, at id.
501
Id.
502
Noah Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment
Relationships, 61 VAND. L. REV. 857, 864 (2008).
503
Id. at 864.
504
See Determining Worker Status 28, IRS FEDERAL-STATE REFERENCE GUIDE (July 2020).
https://www.irs.gov/pub/irs-pdf/p963.pdf
505
See Employment Relationship Under the Fair Standards Labor Act 1, U.S. DEP’T OF LABOR, Wage & Hour
Division (July 2008), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs13.pdf

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1. Internal Revenue Service classifications
For tax purposes, the Internal Revenue Service does not seem to classify inmate workers as
employees. Rev. Rule 75-325 holds that inmate workers performing services for the Federal Prison
Industries are not its employees for income tax withholding purposes.506 Additionally, Code §
3121(b)(7)(F) holds that services done by state inmates are excepted from the term “employment,”
and thus, the social security tax.507
The determination of whether workers are employees or not has significant consequences for
tax liability and reporting.508 Employment taxes for those classified as employees include federal
income tax withholding, Old-Age, Survivors and Disability Insurance tax (OASDI or Social
Security), and Medicare, as well as any state or local taxes.509
Inmates can be responsible for paying taxes on any income they earn while imprisoned,
however. In Arizona, for example, the state decided that any inmates earning over $600 should
have that income reported to the IRS.510 $600 is the IRS threshold amount for tax payment.511
Any taxes owed would come from an inmate's financial account, where their labor wages are
deposited.512 The rate of these taxes, usually imposed on independent contractors, is
approximately 15.3% of earnings.513
Tax-paying inmates are also eligible for stimulus payments, assuming they file a tax return,
received Social Security or Railroad Retirement Income, or previously registered with the IRS
through the non-filers portal.514 This includes the recent CARES ACT stimulus payments.515
In addition, a company’s use of carceral labor can result in significant federal tax credits.516
Under the federal Work Opportunity Tax Credit (“WOTC”), private employers and companies
who utilize prison labor can reduce their federal income tax liability by hiring current or ex-

506

See Marie Cashman, Prison Workers 4, Office of Chief Counsel, IRS, (January 30, 2004),
https://www.irs.gov/pub/irs-wd/0526018.pdf
507
Id. at 6.
508
Determining Worker Status, at 28.
509
Id..
510
See Craig Harris, Arizona Inmates Working Prison Jobs Might Owe Uncle Sam for the First Time, AZCENTRAL
(Feb. 3, 2017), https://www.azcentral.com/story/news/local/arizona-investigations/2017/02/03/arizona-inmatesworking-prison-jobs-might-owe-uncle-sam-first-time/97414206/
511
Id.
512
Id.
513
Id.
514
See Michelle Singletary, Federal Judge Rules Against Treasury and IRS Again: The Incarcerated Are Entitled to
Stimulus Checks, Wash. Post (Oct. 19, 2020), https://www.washingtonpost.com/business/2020/10/19/federal-judgerules-inmates-must-receive-stimulus-checks/
515
Id.
516
See Patrice Fulcher, Emancipate the FLSA: Transform the Harsh Economic Reality of Working Inmates, 27 J.
CIV. RTS. & ECON. DEV. 679, 689 (2015).

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felons.517 The tax credit is per employee, and can range from $1,200 to $9,600, depending on the
qualifications of the individual hired.518

2. Fair Labor Standards Act classifications
FLSA was promulgated in 1938 to protect workers, establishing minimum wage, overtime
pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the
private sector, as well as in federal, state, and local government.519 The FLSA was enacted to
eliminate “labor standards detrimental to the maintenance of the minimum standard of living
necessary for health, efficiency, and general well-being of workers,” and to stop “unfair method[s]
of competition” created by substandard labor conditions.520 The failure to apply the FLSA to the
majority of carceral workers, however, completely undermines this objective.
For purposes of the FLSA, employee status is determined based on economic reality and
economic dependence.521 Although the FLSA does not specifically exempt prisoners from
minimum wage requirements, most courts have held that carceral laborers are not covered.522
These courts contend that prisoners cannot be defined as a class of "employees" to which the Act
applies.523 Since inmate laborers cannot be considered “employees” under FLSA, they cannot also
be subject to any of the Act’s provisions, including minimum wage requirements.524
Under FLSA, an employee relationship only exists where “the alleged employer (1) had
the power to hire and fire employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4) maintained
employment records.”525 Because most inmate labor is controlled by their individual correctional
facility, the FLSA usually does not apply. Overall, courts have generally held that FLSA only
applies to prisoners when they are part of a work release program laboring for private firms, under
the primary supervision of those businesses.526
Moreover, courts tend to focus on an “exclusive market” understanding of employment
when determining whether prison labor is part of an economic market relationship, classifying
517

Work Opportunity Tax Credit, INTERNAL REVENUE SERVICE, https://www.irs.gov/businesses/small-businessesself-employed/work-opportunity-tax-credit
518
Proposed Legislation to Increase WOTC Minimum to $5,000 per Employee for All Targeted Groups, SYNERGI
PARTNERS (May 21, 2021), https://www.synergipartners.com/blog/legislative-update-legislation-introduced-toincrease-work-opportunity-tax-credit-to-help-americans-get-back-to-work/
519
See Catherine Ruckeshaus, Fair Labor Standards Act at 80: It’s More Important than Ever, NAT’L EMPLOY. L.
PROJECT (June 26, 2018), https://www.nelp.org/commentary/fair-labor-standards-act-at-80-its-more-important-thanever/
520
29 U.S.C. § 202(a).
521
See Young v. Cutter Biological, 694 F. Supp. 651, 655 (D. Ariz. 1988) (citing 29 U.S.C. § 203(d)).
522
See Katherine Leung, Prison Labor as a Lawful Form of Race Discrimination, 53 HARV. C.R. – C.L. L. REV.
681, 695 (2018); see also Watson v. Graves, 909 F.2d 1549, 1554-55 (5th Cir. 1990).
523
See Matthew Lang, The Search for a Workable Standard for When Fair Labor Standards Act Coverage Should
Be Extended to Prisoner Workers, 5 U. PENN. J. LABOR & EMPLOY. L. 191, 193 (2002).
524
Id.
525
Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983).
526
Carter v. Dutchess Comm. College, 735 F.2d 8, 11 (2d Cir. 1984).

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inmate labor as noneconomic.527 Following the exclusive market model, the inseparability of
carceral labor from an institution such as a correctional facility makes it a “nonmarket
relationship,” thus rendering it both noneconomic and not an employment relationship.528

3. OSHA, the Toxic Substances Control Act, and the Clean Air Act
Federal prisoners are not considered employees under OHSA,529 the Toxic Substances
Control Act (TSCA),530 and the Clean Air Act (CAA).531 Due to such classification, a federal
prisoner cannot report or file a complaint about working conditions in her place of carceral labor.532
The Department of Justice has determined that “federal prisoners clearly are not parties to a
contractually based employer-employee relationship as contemplated in TSCA, the CAAA, or
OSHA.”533 Indeed, since the work that prisoners do can be classified as involuntary servitude,
federal prisoners are legally incapable of entering into “any contract of hire.”534 Accordingly, the
DOJ has determined that employee protections provided for TSCA and clean air whistleblowers,
in addition to OSHA’s definition of a federal “employee,” is not applicable to federal prisoner
work.535
B.

Funding Private Businesses in Prisons

Wall Street helps finance CoreCivic and GEO Group, the two primary multibillion-dollar
private prison companies that routinely employ many state and federal prisoners.536 In addition,
private equity has enabled the growth of many private companies working in corrections, both
large and small, ones that assist in placing prisoners into carceral labor situations.537 As long as
finance and banking continue to support inmate labor on behalf of private companies, it will be
nearly impossible to eradicate.
1. Banks floating private prison industries
Several multinational banks grant loans and extend other financing agreements which help
support private prison industries, which make tremendous profits off of carceral labor.538 GEO

527

Zatz, Boundaries of Markets, supra note __, at 882.
Id.
529
29 U.S.C. § 652, § 3.
530
15 U.S.C. § 262
531
42 U.S.C. § 7622, § 312.
532
See Whether a Federal Prisoner Worker is an “Employee” Within the Meaning of Certain Federal Statutes 202,
MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION (September 19,
1988), https://www.justice.gov/file/24126/download
533
Id. at 204.
534
Id. at 205.
535
Id.
536
See Laura I Appleman, Treatment Industrial Complex, at 41-42.
537
Id. at 41.
538
See Shahrzad Habibi et al., 2019 Data Brief: The Wall Street Banks Still Financing Private Prisons, IN THE
PUBLIC INTEREST (Apr. 5, 2019), http://www.inthepublicinterest.org/ wp-content/uploads/Updated-2019-Data-Brief528

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Group and CoreCivic, among other private prison companies, manage their debt financing through
a combination of credit, loans, and bonds.539
GEO Group and CoreCivic both have revolving lines of credit with various banks, which allow
them to borrow and repay funds at will, up to their credit limit.540 Private corrections companies
also enter into term loan agreements, which permit them to borrow a certain amount from a
combination of banks, to be repaid according to a determined schedule.541 Finally, banks
underwrite the corporate bonds issued by private corrections companies, which are then purchased
by private banks and resold on the secondary market.542 The banks receive millions of dollars in
interest and fees in return.543
Much of this lending to private prison companies goes through company-owned Real Estate
Investment Trusts (REIT), an investment vehicle created for companies traditionally investing in
and obtaining revenue from real estate holdings.544 Given how many private prison companies
organize and profit from carceral labor through their work farms, rehabilitation centers and
halfway houses,545 the funding of these companies needs to be carefully scrutinized and regulated.
Currently there is no such oversight, financial or other.
2. Investment and Mutual Funds Supporting Prison Labor
A variety of investment, mutual, and pension funds are deeply invested in private
corrections companies and other businesses dependent on prison labor, with millions of dollars
held in these vehicles.546 Specifically, Vanguard and Fidelity, the two major U.S. investment funds,
own stock in various companies that use inmate labor. For example, Vanguard Total Stock Market
Index Fund ($VTSAX) has $150.91 billion invested in 38 companies generally involved in the
prison industrial complex, amounting to 14% of the fund assets.547 Likewise, Vanguard ESG U.S.
Stock ETF ($ESGV) has $477.4 million invested in 18 companies involved in the prison industrial
complex, amounting to 14% of the fund assets.548

The-Wall-Street-Banks-Still-Financing-Private- Prisons-FINAL-EMBARGOED-UNTIL-4-8-19-1030am.pdf,
archived at https://perma.cc/ 9SWS-8C39
539
Appleman, TIC, at 42.
540
Habibi, at 1.
541
Id. at 3.
542
Id.
543
Id.
544
See Matt Stroud, Why Would a Prison Corporation Restructure as a Real Estate Company?, FORBES (Jan. 31,
2013), https://www.forbes.com/sites/mattstroud/2013/01/31/why- would-a-prison-corporation-restructure-as-a-realestate-company/#214bb67b6caa, archived at https://perma.cc/FBK8-TCBL
545
Appleman, TIC, at 18 – 23.
546
Id. at 44.
547
See Vanguard Total Stock Market Index Fund, PRISON FREE FUNDS (February 27, 2021),
https://prisonfreefunds.org/fund/vanguard-total-stock-market-index-fund/VTSAX/prison-industrial-complexinvestments/FSUSA002PT/FOUSA00L83
548
See Vanguard ESG U.S. Stock ETF Fund, PRISON FREE FUNDS (February 27, 2021),
https://prisonfreefunds.org/fund/vanguard-esg-us-stock-etf/ESGV/prison-industrial-complexinvestments/FS0000DVU7/F000010QC6

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Fidelity also has invested in both private prison companies and companies using inmate
labor. This includes Fidelity® Total Market Index Fund ($FSKAX), which has $8.04 billion
invested in 38 prison companies, amounting to 13% of fund assets.549 Additionally, Fidelity Series
Total Market Index Fund has $4.82 billion invested in 38 companies involved in the prison
industrial complex, amounting to 13% of fund assets.550
Moreover, private prison companies, as well as many corrections-serving businesses, rely
heavily on carceral labor in prisons, detention centers, and halfway houses, a model which is an
essential part of their modus operandi.551 Banks, mutual funds, and various investment vehicles
help support smaller private companies that profit from prison labor. For example, Aramark, a
publicly traded company, provides food services to prisons, and is a heavy user of carceral labor.552
Likewise, many smaller companies such as Keefe Group, iCare (a subsidiary of Aramark), and
Securus Technologies have extremely profitable vending contracts with various correction
facilities, charging high prices to inmates for phone calls, necessary toiletries, and even care
packages.553
In addition to Vanguard and Fidelity, many passively-managed index funds (frequently
integrated into mutual funds or 401Ks) own stock in prison industries and companies using
carceral labor.554 The companies range from private prison companies to companies that rely on
prison laborers for some of their business, including Aramark, Acadia Healthcare,555 Costco,556
3M,557 and Walmart.558 Accordingly, many investors are unaware of their passive funding and
support of companies using carceral labor.
Higher education also supports prisons and carceral labor through its investment strategies.559
Although Columbia University and the UC system have divested from prisons and correctional
facilities, most colleges and universities have retained their investments.560

549

See Fidelity Total Market Index Fund, PRISON FREE FUNDS (February 27, 2021),
https://prisonfreefunds.org/fund/fidelity-total-market-index-fund/FSKAX/prison-industrial-complexinvestments/FSUSA003JP/F00000MJS0
550
See Fidelity Series Total Market Index Fund, PRISON FREE FUNDS (February 27, 2021),
https://prisonfreefunds.org/fund/fidelity-series-total-market-index-fund/FCFMX/prison-industrial-complexinvestments/FS0000EA8M/F000011YJJ
551
See Rebekah Entralgo, Tackling Prison Profiteers Will Take More Than Banning Private Prisons, INEQUALITY
(February 1, 2021), https://inequality.org/great-divide/prison-profiteers-ban/
552
See Tanay Edwards, It’s Time for Investors to Dump Shares of Companies that Profit from Mass Incarceration
and Prison Labor, MARKETWATCH (June 30, 2020), https://www.marketwatch.com/story/its-time-for-investors-todivest-from-companies-that-profit-from-mass-incarceration-and-cheap-us-prison-labor-2020-06-29
553
Id.
554
See Companies, Prison Industry Companies, PRISON FREE FUNDS, https://prisonfreefunds.org/companies.
555
See Acadia Healthcare, INVESTIGATE (July 19, 2019), https://investigate.afsc.org/acadia-healthcare
556
See Costco Wholesale, INVESTIGATE (September 9, 2020), https://investigate.afsc.org/company/costco-wholesale
557
See 3M Co, INVESTIGATE (August 9, 2018), https://investigate.afsc.org/company/3m
558
See Walmart, INVESTIGATE (September 10, 2020), https://investigate.afsc.org/company/walmart
559
See Sarah Brodsky, Investors Question Private Prison Holdings, IMPACT INVESTING EXCHANGE (Apr. 11, 2019),
https://www.impactinvestingexchange.com/investors-question-private-prison-holdings/
560
See James Brewer, Are You Unknowingly Investing In Private Prisons, FORBES (Feb. 25, 2021),
https://www.forbes.com/sites/jbrewer/2021/02/25/are-you-unknowingly-investing-in-privateprisons/?sh=66e05e0c226b

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In sum, many individuals are unknowingly invested in companies using carceral labor,
through standard mutual funds and other investment vehicles. At a minimum, there should be
more transparency for those who choose not to support such involuntary servitude.

Part V: Solutions, Regulatory and Otherwise
There are various ways to attack the use of abusive carceral labor in state, federal, and
industrial setting. These include filing lawsuits by current inmates, implementing regulatory
oversight, abolishing slavery and involuntary servitude in state constitutions, and divesting from
private companies using prison labor in exploitative ways, as well as private prisons themselves.
A. Regulation and Lawsuits
1. Regulatory Power
Congress has the power to regulate inmate labor in federal prisons, but historically has not
done so.561 The Fair Labor Standards Act of 1938, however, guarantees a minimum wage and
overtime to all of those employed in the U.S., and could easily be applied to inmate labor.562
Although courts and legislatures have read a prisoner exemption into their interpretation of
FLSA,563 this may conflict with a more general Supreme Court holding, stating that “[s]pecificity
in stating exemptions strengthens the implication that employees not thus exempted ... remain
within the Act.”564
State and federal courts have held that prisoners are not employees because incarcerated
individuals are removed from the national economy.565 However, carceral labor substantially
contributes to much state, federal, and business profit, as I discuss above. The FLSA should be
interpreted to cover inmate labor both inside and outside correctional facilities, granting prisoners
a fair wage for their many hours of hard toil.
2.

Lawsuits by Prisoners

There are a number of lawsuits pending against correctional facilities for harsh inmate
working conditions. Current and former inmates in Colorado have filed suit in federal district
court against the state prison system, the private prison operator CoreCivic, and governor Jared
Polisas.566 The prisoners allege “slave labor” conditions during their incarceration by the Colorado
561

See Ruben Garcia, U.S. Prisoners' Strike is a Reminder How Common Inmate Labor Is, CBS NEWS (September
3, 2018), https://www.cbsnews.com/news/u-s-prisoners-strike-is-reminder-how-commonplace-inmate-labor-is/
562
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FairLaborStandAct.pdf
563
See supra Part III.
564
Powell v. U.S. Cartridge Co., 339 U.S. 497, 517 (1950).
565
See Renee Henson, Picking Cotton for Pennies: An Exploration into the Law's Modern Endorsement of a FreePrison Workforce, 2 BUS. ENTREPRENEURSHIP & TAX L. REV. 193, 201 (2018).
566
See Brian Maass, Colorado Inmates Sue Over ‘Slave Labor,’ Demand Minimum Wage, Paid Vacations, Paid Sick
Leave, CBS DENVER (July 27, 2020), https://denver.cbslocal.com/2020/07/27/slave-labor-prison-lawsuit-minimum-

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prison system.567 The suit demands that inmates be paid minimum wage, be considered state
employees, and receive the same benefits as state workers, such as paid holidays and vacations,
paid sick leave, and medical benefits.568 Colorado’s 2018 change to its state constitution,
eliminating slavery and involuntary servitude as potential punishments to crime, carved out room
for the lawsuit to be filed, as the prisoners now argue they are subject to slave labor conditions,
which are unconstitutional.569
Eight California prisoners in Alameda County, CA have likewise filed a federal lawsuit
alleging that Aramark—the $16.2 billion multinational food and facility services conglomerate
serving the Santa Rita jail—profited from forced labor.570 The plaintiffs claimed that their unpaid
work for Aramark was forced labor, violated the U.S. Constitution and the Trafficking Victims
Protection Act, and ignored Prop. 189, a 1990 California law requiring private companies to pay
prisoners fair wages.571 The federal complaint argues that prisoners are entitled to wages equal to
non-incarcerated workers, and are eligible for overtime pay.572 The class action also alleges that
that the jail’s deputies forced prisoners to work by either threatening solitary confinement, longer
sentences, or firing.573 The plaintiffs have sought compensatory and punitive damages, attorney’s
fees, and declaratory and injunctive relief.574
Following a similar lawsuit in 2020, Nebraska was required to start paying its inmate work
force between $20 and $30 dollars a week for their labor within its jails laundering sheets,
landscaping, and cleaning bathrooms.575 After a 2020 vote amending Nebraska's constitution and
outlawing slavery and involuntary servitude as criminal punishment, Nebraska now must pay
prisoners for labor it had historically required them to do for free.576 Nebraska inmate labor is not
compensated at minimum wage, however.577
These recent prisoner suits offer one way for inmate laborers to attempt to get paid a proper
minimum wage from their work efforts. Individual or even class lawsuits, however, are a slow
and chancy way to claw back some of the profit made by the state and private companies, and only
give relief to a small group of plaintiffs even if successful.

wage/#:~:text=The%20measure%20passed%20with%2066,of%20the%20changed%20state%20constitution.&text=
%E2%80%9CI%20always%20viewed%20it%20as%20slave%20labor%2C%E2%80%9D%20said%20Bassford.
567
Id.
568
Id.
569
Id.
570
See Madison Pauly, Jail Inmates Worked for a $16 Billion Company Without Pay. Now They Want Their Wages,
MOTHER JONES (January 6, 2020), https://www.motherjones.com/crime-justice/2020/01/alameda-santa-rita-jailaramark-unpaid-wages-lawsuit/
571
Id.
572
Id.
573
Id.
574
Ruelas, Complaint for Damages and Declaratory and Injunctive Relief, at id.
575
See Riley Johnson, Lancaster County Jail Inmates Now Paid for Work after Nebraska Voters Passed Slavery
Ban, LINCOLN JOURNAL STAR (Jan. 21, 2021), https://journalstar.com/news/local/crime-and-courts/lancaster-countyjail-inmates-now-paid-for-work-after-nebraska-voters-passed-slavery-ban/article_ced74ec6-7255-5955-a16c106922ba10bc.html
576
Id.
577
Id.

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B. Abolishing Constitutional Slavery and Involuntary Servitude
1. Federal Abolition Amendment
The so-called "Abolition Amendment" was a bicameral effort to remove the words “except
as a punishment for crime whereof the party shall have been duly convicted" from the 13th
Amendment.578 The joint resolution would have banned slavery and involuntary servitude as legal
punishments for crimes.579 The original resolution did not pass in the 116th Congress.580
The resolution was re-introduced on June 18, 2021 by Oregon Senator Jeff Merkley and
Georgia Representative Nikema Williams.581 The bill’s sponsors argued that eliminating this
particular clause from the 13th Amendment would “send a clear message: in this country, no person
will be stripped of their basic humanity and forced to toil for someone else’s profit.”582 As outside
supporters of the bill noted, “it targets forced labor and not prison work programs, which are
voluntary.”583 Currently no action has been taken.
Although passing the Abolition Amendment is a noble endeavor, and would help some
prisoners who are currently forced to work without any pay or be punished, its passage would not
solve all the issues tied to carceral labor and profit-making. The profits extracted from inmate
work are so deeply embedded into our system of mass incarceration that this potential Amendment
would only ameliorate part of the problem.
2.

Amending State Constitutions

Approximately 20 states still have similar slavery and indentured servitude clauses in their
constitutions permitting either human bondage or prison labor after conviction of a crime.584
Colorado,585 Utah, and Nebraska586 have removed such constitutional provisions from their state
constitutions.587 Colorado’s constitution now simply states, “"There shall never be in this state
either slavery or involuntary servitude,” eliminating language similar to the Thirteenth
578

U.S. CONST., 13TH AM.
S.J. Res. 81 (116th Congress), December 20, 2020, https://www.govinfo.gov/content/pkg/BILLS116sjres81is/pdf/BILLS-116sjres81is.pdf
580
Id.
581
Ahead of Juneteenth, Merkley, Williams Propose Constitutional Amendment to Close Slavery Loophole in 13th
Amendment, Merkley Senate (June 18, 2021), https://www.merkley.senate.gov/news/press-releases/ahead-ofjuneteenth-merkley-williams-propose-constitutional-amendment-to-close-slavery-loophole-in-13th-amendment2021
582
Id..
583
See Terry Tang, Lawmakers Mark Juneteenth by Reviving “Abolition Amendment,” A.P. NEWS (June 18, 2021),
https://apnews.com/article/or-state-wire-race-and-ethnicity-lifestyle-juneteenth963c58a1a19ba501f5677343b9c786e0
584
Id.
585
See Bill Chappell, Colorado Votes to Abolish Slavery, Two Years After Similar Amendment Failed, NPR (March
7, 2018), https://www.npr.org/2018/11/07/665295736/colorado-votes-to-abolish-slavery-2-years-after-similaramendment-failed
586
Tang, Abolition Amendment, at id.
587
See Elena Lynn Gross, Alabama, Utah, Nebraska Remove Racist Language from State Constitutions, Forbes
(November 4, 2020), https://www.forbes.com/sites/elanagross/2020/11/04/alabama-utah-nebraska-remove-racistlanguage-from-state-constitutions/?sh=316132461301
579

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Amendment.588 In 2020, Utah and Nebraska both voted to delete language from their state
constitutions allowing slavery and involuntary servitude as punishment.589
Other states seem likely to follow. For example, in response to concerns arising from both
the history of slavery and the continuing existence of inmate labor, the Tennessee Senate has
advanced a proposal removing the clause in the Tennessee state constitution permitting slavery or
involuntary servitude as punishment for a crime.590 Similar to the U.S. Constitution, the Tennessee
constitution holds that ““slavery and involuntary servitude, except as a punishment for crime,
whereof the party shall have been duly convicted, are forever prohibited in this state.”591 Article
I, § 33 would be replaced by text clearly stating that slavery and involuntary servitude is forbidden
in Tennessee.592 Tennessee’s Department of Corrections, however, has requested additional text
noting that “nothing in this section shall prohibit an inmate from working when the inmate has
been duly convicted of a crime.”593 The resolution next goes before the Tennessee House before
being voted on in 2022’s general election.594
Minnesota had a similar bill up for vote in the November 2020 election, offering
Minnesotans the chance to eliminate slavery and involuntary servitude as possible punishments
for crime from their state constitution.595 Some constituents, however, were concerned that
eliminating such language would make it difficult to continue low-wage inmate work programs in
state prisons.596
Likewise, there is a bill in the Texas legislature proposing an amendment to the state
constitution banning slavery and forced labor for any reason, including as punishment.597 The
bill’s supporters argue that this type of amendment would not only help stop correctional facilities
from imposing mandatory work policies, it would also allow inmates forced to work to take these
cases to court.598 Although the bill has not yet gotten a committee hearing, if it passes the
legislature, the decision to amend the TX constitution would be left up to the state voters.599

588

Chappell, Colorado Votes to Abolish Slavery, at id.
Gross, Racist Language from State Constitution, at id.
590
See Tennessee Senate OK’s Bid to Remove ‘Slavery’ As Punishment, ABC News (March 15, 2021),
https://abcnews.go.com/US/wireStory/tennessee-senate-oks-bid-remove-slavery-punishment-76477338
591
Art. I, § 33, The Constitution of the State of Tennessee 5, TENNESSEE GOVERNMENT (Nov. 4, 2014),
https://www.capitol.tn.gov/about/docs/TN-Constitution.pdf
592
Id.
593
Id.
594
See Slater Teague, Tennessee Senate Approves Proposed Amendment to Remove Slavery from State Constitution,
WKRN (March 14, 2021), https://www.wkrn.com/news/tennessee-news/tennessee-senate-approves-proposedamendment-to-remove-slavery-from-state-constitution/
595
See Tim Walker, Minnesota's Constitution References Slavery — But Voters May Have the Chance to Hit Delete,
Northfield News (May 4, 2020), https://www.southernminn.com/northfield_news/news/state/article_ddc6524a-ac505c3d-85eb-34f5398e43ee.html
596
Id.
597
See Sangita Menon, Bill Seeks to Amend Texas Constitution to Amend Slavery, NPR (May 9, 2021),
https://www.kut.org/crime-justice/2021-05-08/bill-seeks-to-amend-texas-constitution-to-ban-slavery
598
Id.
599
Id.
589

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These changes to state constitutions are slowly gaining momentum. New Jersey may place
a similar bill to its voters in 2021.600 In 2020, State Assemblywomen Angela McKnight, Britnee
Timberlake and Shanique Speight sponsored a resolution that would amend NJ Constitution’s
Article 1 with a new paragraph that holds: “No person shall be held in slavery or involuntary
servitude in this state, including as a penalty or a punishment for a crime.”601 It would be passed
in conjunction with a question to New Jersey voters on election ballots asking them if they
approved amending the NJ Constitution for those specified reasons.602
California bans slavery already, but may allow voters to ban involuntary servitude as a
criminal punishment. 603 The involuntary servitude measure would remove involuntary servitude
from Art. 1, Section 6 of the California constitution.604 As the measure’s sponsor notes, “the
euphemistic language of ‘involuntary servitude’ masks what this nefarious practice is in plain
language: forced labor.”605 As California inmates are not given the choice of working when
imprisoned, much California carceral labor is truly involuntary.606 Many Californians feel that
requiring involuntary labor of prisoners simply continues the legacy of slavery, given the
demographics of those incarcerated.607
These states considering the elimination of slavery and involuntary servitude from their
constitutions are part of a broader abolition movement, seeking to end carceral labor state-wide
and in the federal constitution.608 The Abolish Slavery National Network (ABNN) is a national
coalition seeking to “abolish constitutional slavery and involuntary servitude in all forms, for all
people.”609 The ABNN argues that state constitutions are not symbolic, but important parts of state
law, and thus must be amended to eliminate the language of slavery and involuntary servitude.610
The advocacy and movement to abolish the mention of slavery and involuntary servitude
as acceptable punishments for crimes in state documents is a heartening signal, and certainly
should be supported. Like the federal abolition amendment, however, even a full elimination of
slavery and involuntary servitude would not truly fix the persistent problem with coercive carceral
labor, due to the existing case law, the regulation overseeing prison labor, and the complicated
structure of mass incarceration. Abolishing slavery and involuntary servitude for criminal

600

Menon, Bill Seeks to Amend Texas Constitution.
See David Menzies, Amend the 13th’ Cypher Hopes to Galvanize Support in Fight Against Modern Slavery, NEW
JERSEY (September 17, 2020), https://www.nj.com/hudson/2020/09/amend-the-13th-cypher-hopes-to-galvanizesupport-in-fight-against-modern-slavery.html
602
Id.
603
Menon, Bill Seeks to Amend Texas Constitution.
604
See Asm. Kamlager Announces ACA 3: The California Abolition Act to Abolish Involuntary Servitude, CA. STATE
ASSEMBLY DEMOCRATIC CAUCUS (March 4, 2021), https://asmdc.org/press-releases/asm-kamlager-announces-aca3-california-abolition-act-abolish-involuntary-servitude
605
Id.
606
Id.
607
See Don Thompson, Amendment Would Ban Servitude by California Prison Inmates, A.P. NEWS (February 25,
2021), https://apnews.com/article/wildfires-san-francisco-constitutions-prisons-coronavirus-pandemicc182b569cc42d3f75450585979b763e9
608
See Abolish Slavery National Network, https://abolishslavery.us/
609
Id.
610
Id.
601

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punishment is an important symbolic step, but just the beginning of what is needed to start draining
the profits out of punishment.
C.

Divesting from Private Prisons and Private Industry in Prisons
1. Growing Bank Refusal to Fund Private Prison Companies

As discussed in Part IV, despite increasing divestment, there are still some major banks
that help fund private prisons’ complicated real-estate and tax holdings. More and more, however,
lenders have begun abandoning private prison companies, cutting off funding and declining to
provide financing for new facilities.611 Over the past 4 years, several major banks have pulled their
credit from the private corrections industry, including JPMorgan Chase, Wells Fargo, PNC,
Barclays, U.S. Bank, SunTrust Banks/BBT, BNP Paribas, and Bank of America.612 Approximately
72% of future financing to these companies, with an estimated value of over $1.9 billion, has
disappeared.613
As a result, both Geo Group and CoreCivic are currently facing significant cash-flow
problems, reflecting their loss of credit access from major banks.614 Most recently, Regions Bank
in Alabama announced the ending of its partnership with CoreCivic, and will not be renewing their
2023 contract.615 Following suit, Barclays Bank and KeyBank Capital Markets pulled out of a deal
to help fund CoreCivic’s building of three Alabama prisons.616 The pressure for banks to distance
themselves from the financing of private prison companies continues to increase,617 as more
reports spread of private prisons’ unfair forced labor policies and terrible living conditions.
As more and more banks hopefully pull their funding from major private prison companies
like CoreCivic and Geo Group, their ability to continue to expand across the country will cease.
Public pressure and shaming on those remaining banks who continue to fund them may eventually
stop ability of private prisons to force scores of imprisoned carceral workers to labor in unsafe and
poorly compensated jobs.
2.

Banks Supporting the Released

In harmony with the divestment of many major banks from private prison REITS such as
CoreCivic and Geo Group, it is also possible for banks to support prisoner education,
611

Appleman, Treatment Industrial Complex, at 50.
Id.
613
See Claire Carlile, Financing Racism in U.S. Private Prisons, Ethical Consumer (September 11, 2020),
https://www.ethicalconsumer.org/money-finance/financing-racism-us-private-prisons
614
See Matthew Clarke, Private Prison Companies Face Stock Crunch, Credit Crunch, PRISON LEGAL NEWS
(February 1, 2021), https://www.prisonlegalnews.org/news/2021/feb/1/private-prison-companies-face-stock-crashcredit-crunch/
615
See Morgan Simon, Regions Bank of Alabama Turns Its Back on Core Civic, Announces the Plan to End
Relationship, FORBES (February 1, 2021), https://www.forbes.com/sites/morgansimon/2021/02/01/regions-bankof-alabama-turns-its-back-on-corecivic-announces-plan-to-end-relationship/?sh=6d64efc6d15b
616
See Morgan Simon, Toxic Alabama Private Prison Deal Falling Apart with Barclays, Forbes (April 21, 2021),
https://www.forbes.com/sites/morgansimon/2021/04/21/toxic-alabama-private-prison-deal-falling-apart-withbarclays-exit/?sh=7939e33752f0
617
Id.
612

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rehabilitation, and job training. Banks should look for opportunities to support organizations that
provide education, training and economic opportunity to those who have been incarcerated.618
For example, Beneficial State Bank619 supports CROP (Creating Restorative Opportunities
and Programs), a non-profit providing released prisoners with restorative assistance, rehabilitation
and other needed services to help them thrive in the community.620 Likewise, Bank of America
supports formerly-imprisoned entrepreneurs who are operating mission-driven organizations.621
Bank of America’s plan, called Unlocked Futures, gives former prisoners an unrestricted $50,000
grant and a year of expert strategic support, along with coaching from Bank of America senior
executives.622
3. Eliminating Private Profit from the Carceral World
Although only 8% of prisons are privately-run,623 there are innumerable ways private
companies using carceral labor make money from public imprisonment. The general use of
external, for-profit providers for health care, food, telephony, banking, and visitation services has
significantly decreased the quality of life for inmates, all while steadily increasing private
revenues.624 The cheap pricing offered by these service providers to the state and local county is
offset by the toll these substandard offerings have on inmates, including higher rates of illness and
death, often barely edible or extremely minimal provisions, very expensive phone rates,
exploitative fees for inmate banking, and pricey video visitation costs for any visitors who may
wish to maintain contact with those incarcerated.625
The private contractors who operate in public prisons and jails have a vested interest in
keep the system of mass incarceration in place, since the more people incarcerated, the more
money these companies make.626 In total, there are at least 3,100 corporations that profit from mass
incarceration.627
Private businesses have benefited tremendously from the change of public provision of
carceral services to private, for-profit provision.628 Incarcerated individuals less so. “The
corrections industry operates for the primary purpose of maximizing profits for its owners—
618

See Randall Leach, Banks Should Follow and Expand on Biden’s Lead and Divest from Mass Incarceration,
Forbes (April 15, 2021), https://www.forbes.com/sites/forbesfinancecouncil/2021/04/15/banks-should-follow-andexpand-on-bidens-lead-and-divest-from-mass-incarceration/?sh=1379e75c4242
619
Id.
620
See Working Together to Restore Lives, CROP ORGANIZATION,
https://www.croporganization.org/experiences/HOME/pages/5e7e597e64a7236b866938dc/home
621
See Workforce Development and Education, BANK OF AMERICA, https://about.bankofamerica.com/en/making-animpact/workforce-development-programs
622
See id.
623
See Private Prisons in the United States, SENTENCING PROJECT (March 3, 2021),
https://www.sentencingproject.org/publications/private-prisons-united-states/
624
See Victoria Law, Public Prisons, Private Profits, TRUTHOUT (November 1, 2014),
https://truthout.org/articles/public-prisons-private-profits/
625
Appleman, Cashing in on Convicts, at 596-607.
626
Karatzanakis, The Punishment Industry, at 860-61.
627
Corrections Accountability Center: Mapping Private Sector Players (April 2018), at 1.
628
Appleman, Cashing in on Convicts, at 607.

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creating strong incentives to achieve new forms of monetary extraction in addition to shifting the
burden of existing costs.”629 To truly free prisoners from the burden of being used as a profit
source, states cannot skimp on services by using private purveyors to save money. Monetizing the
criminal justice system through the use of private service providers injures everyone but the profitmakers.

Conclusion
“Comprised of institutions that include courts, police and sheriffs’ offices, and prisons and
jails that warehouse predominately poor people, the criminal justice system and many of its
stakeholders derive profit in various ways from those caught within its grip.”630
Roughly half of American inmates worked in some form in 2020, many unwillingly, and
even more under very harsh conditions.631 In large part, however, these carceral workers have been
ignored and forgotten. “[T]oiling at the margins of the American economy,”632 these incarcerated
individuals create profit for private industry and cut costs for state and local governments, but get
little payment or benefit for themselves. Carceral labor essentially still functions as modern penal
servitude, itself a quintessentially American invention.633
As Amna Akbar has argued, our system of mass incarceration demonstrates a passionate
“commitment to extracting capital from Black [and minority] labor.”634 And yet there has been
little focus until very recently635 on the role of profit and capitalism in our criminal justice system.
This Article has sought to lay out the historical path of profiteering in punishment, looking
particularly at how carceral labor—and often the literal body, blood, and bones of inmate
workers—has shaped the system of mass incarceration today. Although many aspects of such
carceral labor have altered, the ineradicable extraction of revenues from the corpus of the
imprisoned has not changed.
Where to go from here is the difficult question. Answers have ranged from outright
abolition of prisons,636 to requiring minimum wage or a living wage for prison labor,637 to
629

NCLC, Commercialized (In)Justice (Executive Summary), supra note __, at 1.
Elizabeth Jones, The Profitability of Racism: Discriminatory Design in the Carceral State, 57 U. LOUISVILLE L.
REV. 61, 69 (2018)
631
See Daniel Moritz-Rabson, 'Prison Slavery': Inmates Are Paid Cents While Manufacturing Products Sold to
Government, NEWSWEEK (August 28, 2018), https://www.newsweek.com/prison-slavery-who-benefits-cheapinmate-labor-1093729
632
Benjamin R. Syroka, Unshackling the Chain Gang: Circumventing Partisan Arguments to Reduce Recidivism
Rates Through Prison Labor, 50 U. TOL. L. REV. 395, 396 (2019).
633
See Rebecca McLennan, When Felons Were Human n.8, On the Human, NATIONAL HUMANITIES CENTER
(August 2011), https://nationalhumanitiescenter.org/on-the-human/2011/08/when-felons-were-human/
634
Amna Akbar, Towards A Radical Reimagination of Law, 93 N.Y.U. L. REV. 405, 449 (2018)
635
See, e.g., Akbar; Roberts, Abolitionism Constitutionalism, at 4.
636
See, e.g., Developments in the Law, 132 HARV. L. REV. (2019).
637
See Noah Smith, Paying Minimum Wage to Inmates Helps the Working Class, CHICAGO TRIB. (June 7, 2017),
https://www.chicagotribune.com/opinion/commentary/ct-prison-inmates-minimum-wage-20170607-story.html;
630

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eradicating all involuntary carceral labor.638 What is clear, however, is that removing the cash
from carceral labor will be no easy task, given the deeply enmeshing of profitability with mass
incarceration. The economic forces underlying and benefiting from carceral labor range from
investment funds to major corporations, and are thus difficult to dislodge from the prison industrial
complex. Indeed, “today's prison entrepreneurs view inmates not only as exploitable workers, but
also as captive consumers and tenants, as well as tickets to government money.”639 Loosening the
commercial grasp will be a long and complex process.
If the history of the prison is the history of brutal prison labor,640 then at minimum we must
try to envision a different kind of criminal incarceration, one that allows inmates the dignity of
meaningful work with appropriate compensation, along with the right to choose what type of work
undertaken. Otherwise, a criminal sentence will continue to be what it has always been, a
“pernicious form[] of servitude,”641 trapped in the service of endlessly increasing profit, the literal
revenues of physical toil, suffering, and exploitation. The 21st century can and must do better.

Ronnie K. Stephens, Nevada to Weigh Paying Prisoners Minimum Wage, INTERROGATING JUSTICE (April 21, 2021),
https://interrogatingjustice.org/prisons/nevada-to-weigh-paying-prisoners-minimum-wage/
638
See Eric Foner, We Are Not Done with Abolition, NEW YORK TIMES (December 15, 2020),
https://www.nytimes.com/2020/12/15/opinion/abolition-prison-labor-amendement.html
639
See James Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment, 94 N.Y.U. L. REV. 1465,
1530 (2019).
640
Stephen Garvey, Freeing Prisoners’ Labor, 50 STAN. L. REV. 339, 342 (1998)
641
Goodwin, Modern Slavery, id. at 907.

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