Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

the journal of

c1v1c

The Journal of Civic Information

NFO

Volume 4 | Number 2

September 2022

Journal homepage: https://journals.flvc.org/civic/

ISSN (online): 2641-970X

Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool
Alyssa M. Petroff *
Article Information

Abstract

Received: March 25, 2022

Prisons run by private corporations in the United States have at
hand a pool of individuals who are, by law, required to work while
they are incarcerated. This article examines the secrecy behind the
use of inmate labor, including on-the-job injuries sustained by
prisoners, focusing on the state of Arizona as a case study.
Ultimately, the article recommends that states should create
oversight boards of its private prison system or allow private prison
records to be accessible through already existing public records
laws.

Accepted: May 19, 2022
Published: Sept. 30, 2022

Keywords
Freedom of information
Right to information
Government transparency
Private prisons

* Alyssa M. Petroff, J.D., is an Arizona native, recent graduate of the University of Massachusetts School
of Law, and currently a law clerk with the Supreme Judicial Court of Maine. This article earned first place
in the University of Florida Brechner Center for Freedom of Information 2021-2022 Student Writing
Competition. Please send correspondence about this article to apetroff@umassd.edu. She would like to
thank Professors Justine Dunlap and Richard Peltz-Steele for their continued guidance and mentorship.
To cite in Bluebook: Alyssa M. Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool,
4(2) J. CIVIC INFO 1 (2022).
To cite in APA: Petroff, A. M. (2022). Behind bars: Secrecy in Arizona’s private prisons’ labor pool.
Journal of Civic Information, 4(2), 1-16.

-

DOI: 10.32473/joci.v4i2.130197
Published under Creative Commons License CC BY-NC, Attribution NonCommercial 4.0 International.

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

Introduction
Imagine being expected to work at least forty hours each week, making ten cents per hour,
and then you are seriously injured on the job. Your employer is not required to rush you to the
hospital or report the injury to any federal or state authority. You have no way of knowing if your
type of injury has happened before at your place of work or if the injury could have been prevented.
Your employer is not required to pay for your wages while you recover or pay you anything if you
become permanently disabled. In fact, you are not even classified as an employee and your
employer does not need to treat you as one.
As astonishing as this sounds, that is the exact structure of prison labor in Arizona.
Prisoners housed in the state’s prisons are required, by statute, to work not less than forty hours a
week and operate certain areas within the prison. 1 The state permits private companies to hire
prison labor, pay the laborer pennies per hour, and turn around and sell the product of their labor
at market prices. 2 At the same time, the state requires all able-bodied prisoners work and excludes
them from the protections and benefits of the employer-employee relationship. 3 The exclusion
allows “employers” to refrain from paying federal payroll taxes or social security contributions,
but requires the prisoner to pay other forms of taxes. 4
The expectation of prison labor extends to individuals housed in private prisons and
Arizona’s use of private prisons has exploded in the last two decades. Between 2000 and 2019, the
United States experienced a 3% rise in the overall prison population, but a 32% rise in the number
of prisoners in private facilities. 5 Eight states have more than doubled their for-profit prison
population: Arizona, Florida, Georgia, Indiana, Ohio, Montana, North Dakota, and Tennessee. 6 In
2000, Arizona had 1,430 individuals housed in private facilities, in 2019, the number was 8,291,
resulting in a 480% increase in less than 20 years. 7 By number of prisoners, Arizona has the third
highest private prison population. 8
Close to 20% of Arizona’s prisoners are housed by private corporations and the state is
looking to expand even more. 9 The 2021 legislative session added even more money in the budget
for expansion of for-profit prisons. 10 These facilities have a particularly detrimental effect on

ARIZ. REV. STAT. ANN. § 31-251 (2021).
ARIZ. REV. STAT. ANN. § 31-261 (2021).
3
ARIZ. REV. STAT. ANN. § 21-251 (2021).
4
Stephanie McMahon, Inmates May Work, But Don’t Tell Social Security, 72 S.C. L. Rev. 757 (2021); Whitney
(Sept.
15,
2015),
Benns,
American
Slavery,
Reinvented,
ATLANTIC
https://www.theatlantic.com/business/archive/2015/09/prison-labor-in-america/406177/.
5
Kevin
Muchitch,
Private
Prisons
in
the
United
States,
SENTENCING
PROJECT,
https://www.sentencingproject.org/publications/private-prisons-united-states/ (last visited Jun. 6, 2022).
6
Id. (Each state experienced the following increases: Arizona 480%, Florida 205%, Georgia 110%, Indiana 313%,
Ohio 253%, Montana 125%, North Dakota 221%, and Tennessee 118%.).
7
Id.
8
Id. Arizona is third behind Texas and Florida, respectively, and excluding federal government prison statistics.
9
Id. See also NATIONAL INSTITUTE OF CORRECTIONS, https://nicic.gov/state-statistics/2019/arizona-2019.
10
Muchitch, supra note 5. See also Joseph Jaafari & Justin Price, Arizona Lawmakers Invest More in Private Prisons
REPUBLIC
(Jul.
30,
2021),
After
Record-High
Campaign
Contributions,
ARIZ.
https://www.azcentral.com/story/news/politics/arizona/2021/07/30/az-private-prison-budgets-spike-followingrecord-campaign-spending/5410211001/.
1
2

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

prison labor. 11 The prisoner trade allows Arizona’s private prisons to import and house more
prisoners than are convicted within the state’s borders. 12 Prisoners in the private facilities are
bound by the work requirement, regardless of whether or not they were convicted by the Arizona
criminal justice system.
Records on prison labor within private prisons, and understanding the labor impact, are
hard to come by. Arizona’s public records laws are relatively broad and generally favor the release
of records. 13 However, the state high court created an exception to the presumption of release when
doing so would be against the best interests of the state. 14 It is also unclear from the statutes and
court cases whether private prison records would fall under the public records law that mandates
disclosure.
The Arizona Department of Corrections, Rehabilitation, and Reentry is responsible for the
oversight of private facilities and their management of prisoners. 15 But there is no expectation that
the records produced by such private contracts be made public, and it is unknown how many
prisoners are working within these facilities. Also unknown is the number of prisoners in private
prisons who are working for private for-profit corporations that are selling convict-made goods on
the open market.
This article explores the nature of Arizona’s public records law and the intersection of
prison labor within private prisons. Prison labor use is mandatory by state law, but unknown when
it comes to private facilities. This article also explores prison labor requirements and the prisoner
trade within private facilities. Much is unknown about the private prison labor market because
Arizona allows records to be kept from the public eye. And finally, this article proposes two
solutions to the transparency deficit: either implement state oversight of the private facilities or
expand public records laws to cover private contracts.

Arizona’s mandates
This section will lay out Arizona’s public records law, describe the prison labor market in
Arizona, and then how the privatization of prisons affects transparency in the system.
Public records law
The United States was one of the first democracies in the world to institute an individual’s
right to access government records. 16 When President Lyndon B. Johnson signed into law the
Freedom of Information Act (FOIA), he stated: “[o]ur democracy works best when the people have
all the information that the security of the nation permits. No one should be able to pull curtains
of secrecy around decisions which can be revealed without injury to the public interest.” 17 These
Arizona’s entire prison system has been plagued with grievous health and security issues for several years. The
problems have spawned numerous lawsuits including class-actions regarding health care and forced labor. This paper
will focus on Arizona’s public records law and prison labor within private prisons.
12
ARIZ. REV. STAT. ANN. § 41-1683 (2021). See Emma Kaufman, The Prisoner Trade, 133 HARV. L. REV. 1815
(2020).
13
ARIZ. REV. STAT. ANN. § 39-121 (2021).
14
Carlson v. Pima Cty., 141 Ariz. 487, 490 (1984).
15
ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 106 – CONTRACT BEDS (2020).
16
See Margaret Kwoka, Deference, Chenery, and FOIA, 73 MD. L. REV. 1060 (2014).
17
Craig D. Feiser, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities
Under Federal Law, 52 FED. COM. LAW J. 21, 22 (1999).
11

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

1966 amendments to the Administrative Procedure Act created a pro-disclosure statute that would
allow anyone to request any records from federal agencies. 18 The law mandated that government
agencies comply with requests for information and created only nine enumerated, narrowed
exceptions to the presumptive disclosure policy. 19 The purpose of the change was to institute a
presumption of disclosure, openness, and transparency. 20 But by the 1980s, some government
agencies, along with their records, were no longer accessible to the public. 21
Privatization of government functions exploded late in twentieth century and concerns over
its impact has long been debated. 22 But without a doubt, the impact of privatization on FOIA and
access to information has been substantial. 23 Records, once accessible to the public for review and
inspection, are now under the provenance of private businesses whose goal is often at odds with
the purpose of public records laws. 24 Public scrutiny is especially valuable in public-private entities
because such organizations may get sloppy with the public’s money. 25
Each state is responsible for governing its own right of access to state records, including
those of public-private entities. State public records law can be a powerful tool, giving insight into
government actions and ferreting out corruption. 26 In Arizona, the principal public records law, on
its face, is relatively straightforward: “Public records and other matters in the custody of any officer
shall be open to inspection by any person at all times during office hours.” 27 However, the statute
does not define what constitutes a “public record” or “other matter.” 28 The law applies to any
person elected or appointed to hold a position within a “public body,” which includes any
department or public agency “supported in whole or in part by monies from [the] state.” 29
A request for records does not need to be submitted in any particular form and a
government agency is prohibited from requiring a specific form, however, a public body may ask
John Brinkerhoff Jr., FOIA’s Common Law, 36 YALE J. ON REGULATION 575, 576 (2019).
Daxton “Chip” Stewart & Charles Davis, Bringing Full Disclosure Back: A Call for Dismantling FOIA, 21 COMM.
L. & POL’Y 515 (2016).
20
Id.
21
See Feiser, supra note 17 at 22-23.
22
See Laura Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 UTAH L. REV. 579,
611 (2018); Alex Friedmann, Apples-To-Fish: Public and Private Prison Cost Comparisons, 42 FORDHAM URB. L.J.,
503 (2014); Mike Tartaglia, Private Prisons, Private Records, 94 B.U.L. REV. 1689.
23
See id; Charles Davis & Aimee Edmondson, “Prisoners” of Private Industry: Economic Development and State
Sunshine Laws, 16 COMM. L. & POL’Y 317, 322 (2011); Matthew Bunker & Charles Davis, Privatized Government
Functions and Freedom of Information: Public Accountability in an Age of Private Governance, 75 JOUR & MASS
COMM. Q. 464, 466 (Autumn 1998).
24
Bunker & Davis, supra note 23 at 466.
25
Sabrina Conza, Chasing Smokestacks in the Dark: The Amazon HQ2 Quest Revives Debate Over Economic Dev.
Secrecy, 2 J. CIVIC INFO. 1, 23 (2020).
26
See Josh Moore, Out from the Curtains of Secrecy: Private Univ. Police and State Open Records Law, 2 J. CIVIC
INFO 1 (2020).
27
ARIZ. REV. STAT. ANN. § 39-121 (2021).
28
ARIZ. REV. STAT. ANN. § 39-121 (2021).
29
ARIZ. REV. STAT. ANN. § 39-121.01(A) (1-2) (2021). Full text: (1) “Officer” means any person elected or appointed
to hold any elective or appointive office of any public body and any chief administrative officer, head, director,
superintendent or chairman of any public body.” (2) “Public body” means this state, any county, city, town, school
district, political subdivision or tax-supported district in this state, any branch, department, board, bureau, commission,
council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies
from this state or any political subdivision of this state, or expending monies provided by this state or any political
subdivision of this state. See Bunker & Davis, supra note 23 at 466 (referencing Arizona’s statutory definition of
public body “makes it unlikely that private entities performing government functions would be brought within” the
meaning of the definition and would be protected from disclosure.).
18
19

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

the reason for request. 30 Records which are subject to disclosure must have a “substantial nexus
with a government agency’s activities to qualify as public record.” 31 The broad nature of public
records law in Arizona is to allow any individual access to government information “so that the
public may monitor the performance of government officials and their employees.” 32 Although
broad in both purpose and language, the interpretation and application of the law has been to curtail
access. 33 Both the courts and the state Attorney General have narrowed the presumption to
disclose. 34
Unlike FOIA with its nine exemptions, the Arizona public records law does not have any
exemptions within its statutes. The state high court, however, created three exceptions to the
presumption to disclose. 35 The three judicially created exceptions are: (1) withholding records
based on confidentiality and when some other statute or regulation specifically protects records
from disclosure, (2) when disclosure would be detrimental to the best interests of the state, and (3)
when it is necessary to protect the privacy of persons. 36 The paper explores the confidentiality and
best interests of the state exceptions.
The “confidentiality” exception applies to private contractors that work with government
agencies. 37 The Court has held that documents containing trade secrets are protected from the
public records laws and are not eligible for review. 38 The state Attorney General issued an opinion
that found financial statements filed by contractors are confidential and not subject to the public
records law. 39
The exception for when disclosure is “against the best interests of the state” is of particular
interest. The state high court held that a records disclosure which would be “detrimental to the best
interests of the state” is prohibited. 40 The state Attorney General has interpreted that the
“detrimental to the best interest of the state” standard “permits an agency to designate a record as
confidential only when effectiveness of the agency in the performance of its duties will be
significantly impaired if disclosure of the information is made.” 41 The state agency has the burden
of proof when arguing the disclosure of records is against the best interests of the state. 42 “When
ARIZ. PUBLIC RECORDS LAW – CITIZEN AIDE, ARIZ. OMBUDSMAN (Jun. 2020), https://www.azoca.gov/wpcontent/uploads/Public-Records-Law-Booklet-2020.pdf.
31
Griffis v. Pinal Cty., 214 Ariz. 1, 4 (2007).
32
Phx. Newspapers, Inc. v. Keegan (Keegan), 201 Ariz. 344 (2001).
33
ARIZ. PUBLIC RECORDS LAW – CITIZEN AIDE, supra note 30.
34
See Cox Ariz. Publ’g, Inc. v. Collins, 175 Ariz. 11 (1993) (Public records laws have a “strong policy favoring open
disclosure and access.”).
35
See Phx. Newspapers, Inc. v. Ellis (Ellis), 215 Ariz. 268 (2007); Keegan, 201 Ariz. at 348; Carlson v. Pima Cty.,
141 Ariz. 487 (1984).
36
Carlson, 141 Ariz. at 487.
37
Keegan, 201 Ariz. at 348.
38
Id. at 353. See also ARIZ. REV. STAT. ANN. § 44-401 (2021) (“trade secret” means information, including a formula,
pattern, compilation, program, device, method, technique or process, that both: (a) Derives independent economic
value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use. (b) Is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.); Aimee Edmondson and Charles Davis, “Prisoners” of Private
Industry: Economic Development and State Sunshine Laws, 16 COMM. L. & POL’Y 317, 322 (2011) (at least twentyseven states have similar exemptions. Theoretically, the exemptions are there to protect the state’s economic interest.).
39
Ariz. Att’y Gen. Op. I79-140 (1979) https://azmemory.azlibrary.gov/digital/collection/agopinions/id/12694/rec/3.
40
Carlson, 141 Ariz. at 490 (finding there is a limitation based in common law and a “conflict between the public’s
right to openness in government and important public policy considerations relating to protection of the state.”).
41
Ariz. Att’y Gen. Op. I83-006 (1983) https://azmemory.azlibrary.gov/digital/collection/agopinions/id/13415/rec/4.
42
Ellis, 215 Ariz. at 268.
30

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

the release of information would have an important and harmful effect on the duties of the officials
or agency in question, there is discretion not to release the requested documents.” 43
How the judicial exceptions play out in records requests is still unsettled. Neither the state
Supreme Court nor the Attorney General have directly spoken about whether private prison records
and their resultant prison labor records are disclosable under the law. By statute, the director of the
Arizona Department of Rehabilitation and Reentry (ADC) can make the determination of what
records are to be released, but even the director’s determination may be limited by contractual
obligations. Several news organizations have written about the inability to receive information
from ADC and the privately run facilities. 44 An even bigger question is how prison labor is being
used – and profited from – in private for-profit prisons.
The prison labor market
Prison labor in Arizona appears to be flourishing and provides incredibly cheap labor for
private corporations. Arizona has enacted statutes that require all able-bodied prisoners under
ADC’s commitment to engage in hard labor for at least forty hours per week, allowing for
reductions only when the individual participates in an educational, training, or treatment
program. 45 ADC is required to assess and classify prisoners based on ability and skill level, as well
as medical and mental capacity, and then assign the classification of persons to a designated job. 46
Prison labor is required to be used in the construction, renovation, conversion, and maintenance of
specific buildings within all prison facilities in the state. 47 Exceptions to these rules only apply
when either public or institutional security is at risk, when highly technical skills are required to
complete the work, or when there is a bed shortage that requires emergency construction of new
beds. 48
State law simultaneously mandates prisoners work and disqualifies them as employees. 49
“None of the rights or privileges otherwise accorded to employees shall accrue to [working]
prisoners.” 50 By prohibiting the creation of an employer-employee relationship, the state has
exempted prison labor from the protections typically given to employees including a guaranteed
minimum wage, rights to workers compensation benefits, and federal benefits such as Medicare
and Social Security. 51 Prison labor is also exempted from statutes governing workplace safety and
reporting requirements. 52

Ariz. Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz. 254 (1991).
See Elizabeth Stuart, Poor Living Conditions Sparked Kingman Prison Riots, PHX. NEW TIMES (Jul. 31, 2015),
https://www.phoenixnewtimes.com/news/poor-living-conditions-sparked-kingman-prison-riots-7531256.
45
ARIZ. REV. STAT. ANN. § 31-251 (A) (2021).
46
ARIZ. REV. STAT. ANN. § 31-251 (B) (2021); ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 903 –
INMATE WORK ACTIVITIES (2021).
47
ARIZ. REV. STAT. ANN. § 31-253 (B) (2021) (buildings include: administrative, warehouse, vehicle and maintenance,
educational and vocational, Arizona correctional industries, multipurpose, and laundry.).
48
ARIZ. REV. STAT. ANN. § 31-253 (2021).
49
ARIZ. REV. STAT. ANN. § 31-251 (2021).
50
ARIZ. REV. STAT. ANN. § 31-251 (e) (2021).
51
McMahon, supra note 4; Lauren Castle & Maria Polletta, Some Prisoners in Ariz. Make 10 cents per hour – should
REPUBLIC
(Feb.
8,
2020),
they
get
a
$3
minimum
wage?,
ARIZ.
https://www.azcentral.com/story/news/local/arizona/2020/02/07/arizona-lawmaker-proposes-3-per-hour-minimumwage-prisoners/4681453002/. See also S. Tucson v. Indus. Comm’n, 156 Ariz. 543 (1988).
52
See ARIZ. REV. STAT. ANN. § 23-908, 23-1061 (2021).
43
44

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

Arizona statutorily exempts prison laborers from worker’s compensation. 53 The state’s
high court held the exemption does not deprive prisoners of the equal protection of the law and
found the exclusion of prisoners from worker protections was constitutional. 54 Protections not
given to prisoners include payment of all medical expenses caused by a work-related injury or
illness, and coverage of missed wages in the event of an injury or illness. 55 Further, if an injury
sustained by a prison laborer does happen, the employer is not required to report the injury to the
state’s department of occupational health and safety. 56 Employers are required to report serious
injuries of employees, but an inmate performing work cannot be classified as an employee and is
thus exempt from reporting. 57 A state senator recently proposed a bill that would create a reporting
requirement for injuries sustained by prisoners on the job, but the bill failed in committee. 58
The exemption of prison labor from participating in social security is particularly harsh.
Wages earned through prison labor are not taxed through the typical tax system. 59 Federally
required taxes such as payroll tax or the Federally Insured Contributions Act (FICA) contributions
are not withheld from inmate pay and “employers” of prison labor do not pay the employerrequired portion of such taxes. 60 Since neither side pays the federally required taxes, it is the
prisoner that gets the short end of the stick. The time spent working while incarcerated is not
counted as a contribution toward social security benefits. 61 And if an inmate is serving a
particularly lengthy sentence during the person’s working years, that individual might not have
enough working years left in their life to earn social security benefits once released from
incarceration. 62
Setting aside the potential of being unable to collect social security, being exempt from
paying taxes is not as promising as it might sound. The state of Arizona mandates inmates pay a
different kind of “tax.” 63 A 25% tax is assessed on all wages for inmates who have less than $250
saved, or less than $50 saved if the inmate is serving a life sentence. 64 If an inmate earns more than
$2.00 per hour, an additional 30% for room and board is deducted regardless of how much the
inmate has been able to save. 65 Additionally, if an inmate initiates a lawsuit, 20% is collected from
all prison deposits and wages until the court costs are collected. 66 Inmates convicted of driving
under the influence are also required to have 67% of their pay deposited into an Alcohol Abuse
53
ARIZ. REV. STAT. ANN. § 31-254 (J) (2021) (“the prisoner does not come within any of the provisions of the workers’
compensation provided in [Arizona law] and is not entitled to any benefits … whether on behalf of the prisoner or of
any other person.”).
54
S. Tucson, 156 Ariz. at 543.
55
ARIZ. REV. STAT. ANN. § 23-901 et seq. (2021).
56
ARIZ. REV. STAT. ANN. § 23-908, 23-1061 (2021); Elizabeth Whitman, More Ariz. Inmates Report Serious Injuries
NEW
TIMES
(Oct.
4,
2019),
While
Working
at
Hickman’s
Egg
Farm,
PHX.
https://www.phoenixnewtimes.com/news/arizona-inmates-report-serious-injuries-hickmans-egg-farm-osha11367976.
57
ARIZ. REV. STAT. ANN. § 23-908, 23-1061 (2021); Whitman, supra note 56.
58
Castle & Polletta, supra note 51.
59
McMahon, supra note 4, at 764.
60
Id. at 765-67.
61
Id. at 759.
62
Id. An inmate’s family could also be excluded from benefits that are offered to dependents upon death.
63
ARIZ. REV. STAT. ANN. § 31-254 (2021).
64
ARIZ. REV. STAT. ANN. § 31-254 (D)(1) & (E)(1) (2021) (the statute does not refer to this as a “tax,” rather the
statute states this is a “mandatory deduction.”).
65
ARIZ. REV. STAT. ANN. § 31-254 (E) (2021) (the statute also requires a 30% reduction in cases of court ordered
child support).
66
ARIZ. REV. STAT. ANN. § 31-254 (D)(2) & (E)(2) (2021).

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Petroff, Prison Labor Records, JCI, Vol. 4, No. 2: 1-16 (September 2022)

Treatment Fund. 67 It is only after all deductions have been made that a prisoner may have access
to his or her earnings. 68
Prison labor fares no better when it comes to wages earned. State statute dictates a
maximum wage prison laborers may earn when working within a prison. 69 Compensation for work
performed inside the prison is determined based on quantity and quality of work performed and
the skill required but cannot exceed $1.50 per hour. 70 This type of work typically includes inmates
who work to maintain the prison, which, as noted above, is required by state law. 71 Jobs that keep
the prison operating typically pay between forty to eighty cents per hour, but start as low as ten
cents per hour. 72 Prisoners working through the state owned and operated Arizona Correctional
Industries (ACI) are excluded from the $1.50 per hour maximum, but ADC has set wage rates to
start at twenty-three cents per hour. 73 ACI contracts with private corporations which hire prison
labor through ACI under the guise of giving inmates “work opportunities.” 74 In 2020, a state
senator introduced a bill to create a $3.00 per hour minimum wage for prison labor, but the bill did
not move past the committee. 75
For prisoners working for a private company, compensation is required to be at least $2.00
per hour. 76 State law further authorizes prison labor to be used for the production of goods to be
sold in the open marketplace. In the 1930s, the U.S. Congress banned the interstate or foreign
transport of goods made by convict labor. 77 However, the ban did not apply to agricultural
commodities or parts for the repair of farm machinery. 78 In Arizona, farming employs some of the
largest numbers of prison labor – and has some of the grisliest injuries to make it to the news.79
One of the largest farming operations with the highest number of inmate labor is Hickman’s Family

ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 106 – 903 INMATE WORK ACTIVITIES (2021).
ARIZ. REV. STAT. ANN. § 31-254 (F) (2021).
69
ARIZ. REV. STAT. ANN. § 31-254 (A) (2021).
70
ARIZ. REV. STAT. ANN. § 31-254 (A) (2021).
71
ARIZ. REV. STAT. ANN. § 31-253 (B) (2021) (buildings include: administrative, warehouse, vehicle and maintenance,
educational and vocational, Arizona correctional industries, multipurpose, and laundry.).
72
Castle & Polletta, supra note 51; ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 903 – INMATE WORK
ACTIVITIES (2021).
73
ARIZ. REV. STAT. ANN. § 31-254 (A); Castle & Polletta, supra note 51.
74
ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, CAPITAL PROJECTS FUNDING & DEPT. FINANCES REPORT 20-109
(2020).
75
Castle & Polletta, supra note 51; Laura Gomez, Democrats Pushing Package of Crim. Just. Reform Bills in 2020,
ARIZ. MIRROR (Jan. 21, 2020), https://www.azmirror.com/2020/01/21/democrats-pushing-package-of-criminaljustice-reform-bills-in-2020/.
76
ARIZ. REV. STAT. ANN. § 31-254 (A) (2021). Prisoners are excluded from the federal minimum wage because
prisoners are not classified as employees and do not receive the federal right to a minimum wage.
77
Ashurst-Sumners Act, Pub. L. No. 74-215, 49 Stat. 494 (1935); 18 U.S.C. § 1761 (2021).
78
18 U.S.C. § 1761 (b) (2021). A 1979 amendment to the law created the Prison Industries Enhancement Certification
Program which allows the sale of certain prisoner made goods. The program requires a jurisdiction to be authorized
to participate, wages to be at a rate not less than that paid for similar work in the same locality’s private sector, worker
benefits including worker’s compensation, and a guarantee that not more than 80% of the gross wages be deducted
for taxes, room and board, family support, and contribution to the victims of crime. Arizona was among the first
jurisdictions to be certified and continues to participate in the program.
79
Chad Marks, Hickman’s Egg Farm Puts Prisoners to Work at High Cost to the Community, Residents Say, PRISON
LEGAL NEWS (Dec. 10, 2019), https://www.prisonlegalnews.org/news/2019/dec/10/hickmans-egg-farm-putsprisoners-work-high-cost-community-residents-say/; Whitman, supra note 56. See CAPITAL PROJECTS FUNDING &
DEPT. FINANCES REPORT, supra note 74; Claire Brown, How Corps. 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/.
67
68

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Farms. 80 Between 2019 and 2020 alone Hickman was sued by nine different inmates for injuries
each sustained while working at the company’s egg farm. 81
Exacerbating the prison labor issue is the prison’s ability to house prisoners sentenced
outside the state of Arizona. Under Arizona statute, private prisons are authorized to accept
prisoners who are convicted outside the state. 82 A prison corporation that brings an out-of-state
prisoner into the state is required to notify the state of the number of prisoners being transferred,
their names, the dates of transfer, and the security level of each prisoner. 83 The organization
importing prisoners to the state is simply required to notify the governor and the director of ADC
at least 48 hours before the prisoners arrive, or at least seven days if more than eleven prisoners
are transferred at one time. 84 Nowhere in the statute is the governor or any official from ADC
authorized to block the importation of prisoners from another state.
The prisoner trade is a relatively recent practice that has emerged throughout the U.S.
Cautious of the British tradition of shipping convicts to distant lands, the U.S. initially banned the
exportation of prisoners from one state to another with the idea that criminals should be confined
to a local prison and transformed through solitude or labor. 85 But by the 1930s the restriction on
prisoner transfers became a problem for the states and Congress ultimately lifted the ban. 86 Today,
states, including Arizona, participate in an interstate corrections compact that allows states to trade
prisoners and establish expectations regarding payment, procedure, and jurisdiction. 87
A prisoner does not have a federally protected right to confinement in any specific prison,
even if that means a transfer of long distances. 88 And being housed in Arizona is no exception.
The state has become home to many prisoners that were convicted of crimes that had nothing to
do with Arizona. In 2007, California contracted with a private prison company to build and house
some 3,000 California prisoners in Eloy, Arizona. 89 Arizona continues to accept prisoners from
California, as well as Hawaii, Vermont, and Colorado. 90
CAPITAL PROJECTS FUNDING & DEPT. FINANCES REPORT, supra note 74; Chad, supra note 79; Whitman, supra note
56.
81
Josh Kelety, Hickman’s Family Farms’ Reliance on Prison Labor is Starting to Yield Lots of Lawsuits, PHX. NEW
TIMES (Jun. 18, 2021), https://www.phoenixnewtimes.com/news/hickmans-family-farms-hit-with-new-lawsuitsover-inmate-worker-injuries-11563930 (Prisoner lawsuits include: Amanda Engler v. Hickman’s Egg Ranch,
CV2020-013621 (Ariz. Sup. Ct. 2020) (inmate sustained a compound fracture in her leg and a fractured knee); Robert
McLaughlin v. Hickman’s Egg Ranch, CV2020-005542 (Ariz. Sup. Ct. 2020) (inmate fell and fractured his leg); Noah
Moore v. Hickman’s Egg Ranch, CV2020-014088 (Ariz. Sup. Ct. 2020) (inmate suffered mangling and extensive
fractures to his right hand); Nathan Peshlakai v. Hickman’s Egg Ranch, CV2019-014790 (Ariz. Sup. Ct. 2019) (inmate
sustained permanent disfigurement and lack of function in right hand and fingers); Mary Stinson v. Hickman’s Egg
Ranch, CV2019-011910 (Ariz. Sup. Ct. 2019) (inmate lost a finger fixing a chicken feeder); Michael Gerhart v.
Hickman’s Egg Ranch, CV2019-012698 (Ariz. Sup. Ct. 2019) (inmate crushed hand and lost function)); Elizabeth
Whitman, Barely Trained Inmate Loses Finger Working at Hickman’s Egg Farm, PHX. NEW TIMES (Sept. 12, 2019),
https://www.phoenixnewtimes.com/news/inmates-maricopa-county-arizona-injured-labor-hickman-egg-farms11354362.
82
ARIZ. REV. STAT. ANN. § 41-1681 esq. (2021).
83
ARIZ. REV. STAT. ANN. § 41-1683 (2021).
84
ARIZ. REV. STAT. ANN. § 41-1683 (2021)
85
Kaufman, supra note 12, at 1823. See also Rebecca McLennan, THE CRISIS OF IMPRISONMENT 19 (2008).
86
Kaufman, supra note 12, at 1827-1829.
87
Id. at 1831.
88
Olim v. Wakinekona, 461 U.S. 238, 246-47 (1983).
89
Id. at 1837. In 2020, the La Palma Correctional Center ended its contract with the state of California and has since
been contracted with the U.S. Bureau of Immigration and Customs Enforcement. The facility houses adult,
undocumented individuals.
90
Id.
80

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No matter where the prisoner was convicted, if he or she is housed in a prison within the
state of Arizona, they are subject to the prison labor laws. The full extent of the state’s reliance on,
and exploitation of, prison labor is not fully known, and Arizona’s expanding usage of private
prisons creates a transparency issue.
Private prison bloat and failures
The private prison industry was established in the 1980s and, quickly, the private prison
population grew. 91 Concerns about private prison use grew just as much as their populations.92
Concerns included operators of private facilities would be more likely to cut corners with security
measures, prison quality, and constitutional rights of inmates all in the name of saving money.93
The likelihood of corruption in prison operators and mistreatment and exploitation of inmates is
higher because such actions can be hidden from the public in private prisons because they are not
subject to public records laws. 94
Nationally, the overall prison population has shrunk by 9% since 2009, and currently, about
8% of the total state and federal prison population housed in privately run facilities. 95 A 2021
executive order by President Joseph Biden mandated the end of private prisons within the federal
Bureau of Prisons. 96 But the mandate will affect only a portion of the prison population because
the order ends federal contracts and has no consequence to state arrangements. 97 Many states that
have engaged in the privatization of prison functions have since decreased their reliance on such
facilities or eliminated them altogether. 98 A handful of states have gone the other way, doubling
down and investing even more in privatization. 99
Arizona stands far outside the national trend. Arizona’s prison population has grown by
60% since 2000, becoming the state with the fourth highest incarceration rate and eighth largest
prison system. 100 Between 2000 and 2019, Arizona increased its use of private prisons more than
480%, and all signs point to further increasing privatization. 101 In January 2020, Arizona’s
governor announced that the state-run prison complex in Florence would close, one of the largest
prison complexes in the state and home to death row executions. 102 Although the closure was
A.W. Geiger, U.S. Private Prison Population Has Declined in Recent Years, PEW RES. CTR. (Apr. 11, 2017)
https://www.pewresearch.org/fact-tank/2017/04/11/u-s-private-prison-population-has-declined-in-recent-years/; U.S.
DEPT.
OF
JUST.,
BUREAU
OF
JUST.
STAT.,
Bulletin:
Prisoners
in
1983
(1983)
https://bjs.ojp.gov/content/pub/pdf/p83.pdf.
92
Feiser, supra note 17 at 25. See also Warren L. Ratliff, The Due Proc. Failure of America’s Prison Privatization
Statutes, 21 SETON HALL LEGIS. J. 371, 372 (1997).
93
Feiser, supra note 17 at 24-25.
94
Id. at 24 n.20.
95
Michele Deitch, Raising Ariz.’s Commitment to Health & Safety: The Need for Indep. Oversight of Ariz.’s Prison
Sys., 52 ARIZ. STATE L. J. 811, 812 (2020); Muchitch, supra note 5.
96
EXEC. OFFICE OF THE PRESIDENT, EXEC. ORDER NO. 14006, REFORMING OUR INCARCERATION SYSTEM TO
ELIMINATE THE USE OF PRIVATELY OPERATED CRIMINAL DETENTION FACILITIES (2021) (requiring the non-renewal
of federal prison contracts and does not affect immigration detention centers.). Detainees in immigration detention
centers make up a majority of the federal prison population housed within private facilities.
97
Id.
98
Muchitch, supra note 5.
99
Id.
100
Deitch, supra note 95.
101
Id.; Jaafari & Price, supra note 10.
102
ARIZ. DEPT. CORR. REHAB. & REENTRY, DEATH ROW INFO. AND FREQUENTLY ASKED QUESTIONS (2021)
https://corrections.az.gov/public-resources/death-row/death-row-information-and-frequently-asked-questions;
91

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announced under the guise of saving the state money by moving prisoners to private facilities, in
January 2021, the state legislature increased funding to private prisons, paying even more per day
for private prisons than the state would have paid had the Florence prison stayed open. 103 By then,
the state’s own reporting had found that privatization was in fact costing the state money. 104
A 2010 report commissioned by ADC found that privately operated prisons were more
expensive than those run by the state. 105 The state was in fact paying more per inmate per day for
inmates housed at private facilities regardless of the level of security provided. 106 After that report,
and an election of a republican governor, the state no longer contracts with an independent firm to
research cost comparisons between public and private facilities. 107 In fact, the state repealed the
law requiring cost comparisons between private and public facilities. 108 Curiously, the state law
mandating that private facilities produce a cost savings to the state still exists. 109
Direct financial costs aside, there are numerous safety issues with Arizona’s private
facilities. 110 In July 2010, three inmates escaped from the Kingman Arizona State Prison and
murdered two people while on the run. 111 The Kingman facility was operated by the Management
and Training Corporation (MTC), and a subsequent investigation showed numerous security lapses
including failure to cure previously identified security risks such as cell doors that did not lock and
inoperable security cameras. 112 Even after an escape that the private entity caused, MTC’s contract
was not canceled nor was MTC financially punished by the state. In fact, less than a year after the
escape, the state paid MTC three million dollars because MTC’s contract had guaranteed that the
Kingman facility would remain 97% full and when it did not, the state had to pay up. 113
Suzanne Adams-Ockrassa, Governor’s Office Provides Answers on Florence Prison Closing, CASA GRANDE
DISPATCH (Dec. 22, 2020), https://www.pinalcentral.com/casa_grande_dispatch/area_news/governors-officeprovides-answers-on-florence-prison-closing/article_00d814cc-7b82-5199-b092-b92e6e3d92ac.html.
103
Jaafari & Price, supra note 10; Shaley Sanders, Closing Florence Prison Could Cost Taxpayers Millions Annually,
KOLD (Mar. 3, 2020https://www.kold.com/2020/03/03/kold-investigates-closing-florence-prison-could-costtaxpayers-millions-annually/.
104
Richard A. Oppel Jr., Private Prisons Found to Offer Little in Savings, N.Y. TIMES (May 18, 2011),
https://www.nytimes.com/2011/05/19/us/19prisons.html; Prison Privatization in Ariz., AM. FRIENDS SERV. COMM.
(Oct. 2019) https://www.afsc.org/sites/default/files/documents/AZ_Prison_Privatization_White_Paper.pdf.
105
D.M. Levine, What’s Costlier than a Gov’t Run Prison? A Private One, CNN (Aug. 18, 2010),
https://money.cnn.com/2010/08/17/news/economy/private_prisons_economic_impact.fortune/;
PRISON
PRIVATIZATION IN ARIZ., supra note 104. See also Appleman, supra note 22 at 611; Friedmann, supra note 22 at 503.
106
Friedmann, supra note 22, at 508 (a weblink to the actual report is no longer available). See also Tartaglia, supra
note 22 at 1706 n. 107 (Arizona Office of the Auditor General stating: “department analysis of private prison and state
prison costs indicated that it may be more costly to house inmates in private prisons.”).
107
PRISON PRIVATIZATION IN ARIZ., supra note 105, at 9.
108
ARIZ. REV. STAT. ANN. § 41-1609.01 (2021). Original text read: “A proposal shall not be accepted unless the
proposal offers cost savings to this state. Cost savings shall be determined based upon the standard cost comparison
model for privatization established by the director.” 2nd Reg. Sess. Ch. 302 § 8 (2012). See Friedmann, supra note
22, at 514 n.50.
109
ARIZ. REV. STAT. ANN. § 41-1609.01 (2021).
110
See Deitch, supra note 95.
111
Marc Lacey, Manhunt in Ariz. Ends in Arrests, N.Y. TIMES (Aug. 20, 2010),
https://www.nytimes.com/2010/08/21/us/21inmate.html; CNN Staff, Accomplice Helped Convicted Murderers
Escape,
Ariz.
Auth.
Say,
CNN
(Jul.
31,
2010),
http://www.cnn.com/2010/CRIME/07/31/arizona.prison.break/index.html.
112
Matt Clarke, Report Faults Private Prison Co. for Deadly Ariz. Prison Break, PRISON LEGAL NEWS (Mar. 15,
2011),
https://www.prisonlegalnews.org/news/2011/mar/15/report-faults-private-prison-company-for-deadlyarizona-prison-break/.
113
Chris Kirkham, Prison Quotas Push Lawmakers to Fill Beds, Derail Reform, HUFFINGTON POST (Sept. 20, 2013),
https://www.huffingtonpost.co.uk/entry/private-prison-quotas_n_3953483. See also Appleman, supra note 22.

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The state guaranteeing a minimum occupancy within private facilities is not unusual. 114 It
is an industry norm to include contract language that requires the state to pay for a minimum
number of inmates at any given time.115 If the state cannot send the specified number of prisoners
to the private facilities, the state is still required to pay for the empty beds. Arizona is among the
states that have the highest occupancy requirements, including three facilities that have a 100%
occupancy requirement. 116 The guaranteed income within these contracts is paid to some of the
worst operators. MTC holds a contract for the Marana Community Correctional Treatment Facility
which requires the state to pay for 100% capacity regardless of how many prisoners are actually
housed in the facility. 117
MTC’s record on safety did not improve after the 2010 escape. 118 In 2015, at the same
Kingman facility, a riot erupted. During the three-day riot, prisoners badly damaged several
housing units causing more than 1,000 inmates to be evacuated and 13 people to be hospitalized. 119
The state department of corrections had to send in a special tactical team to take back control of
the prison. 120 It was only then that the governor deemed MTC unfit to run the facility. 121 After an
investigation found that MTC failed to address more than one-third of the problems identified in
the 2010 investigation of the inmate escape, MTC’s contract for the Kingman facility was
terminated and a new corporation was contracted to turn things around. 122
Responsibility for safety and security for privately run prisons ultimately rests with ADC.
The Contract Beds Bureau within ADC is responsible for ensuring private prison operations are
compliant with federal and state law, and the terms of the contracts between ADC and the private
corporation are being met. 123 In five years, MTC’s failures resulted in the death of two innocent
people and millions of dollars in damage to one facility. The investigation into MTC after the 2015
riot revealed that ADC was not sufficiently conducting its oversight. 124 Issues such as failure to
train staff and provide adequate safety as required under the contract would have been noticeable
to ADC well before any riot. 125 Records obtained by The Arizona Republic show ADC was aware
of the staffing issue because ADC withheld payment to MTC on more than one occasion due to
understaffing, but when asked how many employees MTC was short, ADC refused to answer. 126
114
Appleman, supra note 22, at 611; Arielle Stephenson, Private Prison Mgmt. Needs Reform: Shift Private Prisons
to a True Public-Private Partnership, 49 PUB. CONT. L.J. 477, 485 (2020).
115
Criminal: How Lockup Quotas and “Low-Crime Taxes” Guarantee Profits for Private Prison Corp., IN THE PUB.
INTEREST (Sept. 2013), http://www.njjn.org/uploads/digital-library/Criminal-Lockup-Quota,-In-the-Public-Interest,9.13.pdf.
116
Id.
117
Id.
118
Jerod MacDonald-Evoy and Craig Harris, Ariz. Sends Special Forces to Quell Kingman Prison Riot, USA TODAY
(Jul. 5, 2015, 5:25 PM), https://www.usatoday.com/story/news/nation/2015/07/05/quell-kingman-prisonriot/29741193/.
119
Id.; Stuart, supra note 44.
120
MacDonald-Evoy & Harris, supra note 118.
121
Craig Harris, Ariz. Cuts Ties with Private-Prison Operator Over Kingman Riot, ARIZ. REPUBLIC (Aug. 27, 2015),
https://www.azcentral.com/story/news/arizona/politics/2015/08/26/arizona-kingman-riot-cause-correctionsdepartment-report/32432963/.
122
Elizabeth Stuart, Governor Doug Ducey Severs Private Prison Contract Following Riots, PHX. NEW TIMES (Aug.
27, 2015), https://www.phoenixnewtimes.com/news/governor-doug-ducey-severs-private-prison-contract-followingriots-7601064.
123
ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 106 – CONTRACT BEDS (2020).
124
Harris, supra note 121.
125
Id.
126
Id.

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Arizona’s public records law provides no relief to anyone looking into how these private
facilities are operated. Safety issues aside, it is unknown how prison labor is used within these
prisons. State law mandates prisoners work within certain areas of the prison and state law allows
private, non-correctional corporations to hire prison labor. But many questions remain, such as
whether the prison labor requirement contributed to safety issues in private prisons or if the
requirement contributed to an increase in costs in private facilities versus public, or how are
corporations profiting off the almost-free labor the state mandates.

What can be done
The state’s increased reliance on private prisons serves to hide what is truly happening to
prisoners, the labor they are required to perform, and the resultant public safety hazard. The public
records law is theoretically structured to allow access to the private prison records, as the statute
should apply to any department or agency that is supported, in whole or in part, by money from
the state. 127 However, records have not been disclosed, and court interpretations of the statute have
curtailed its original meaning. To fully understand the nature and extent of the prison labor market
within Arizona’s private prisons, the state should institute an oversight board of the private
facilities or have the private facility records fall under the purview of the public records laws.
An oversight board
Oversight of private prisons has long been subject to question and debate. When
contracting with private entities, a state can exempt the private entity from certain requirements
that are expected of publicly operated prisons. 128 Such exemptions can include the reporting and
disclosure requirements that are otherwise mandatory for non-private facilities. 129 And Arizona
has been no different.
The state takes an arms-length approach to monitoring and overseeing the private prisons
with which they have contracted. One advocacy group noted that the state of Arizona “has virtually
no performance standards for corrections and no mechanism for oversight or accountability.”130
ADC is required to assign a team to every private facility to ensure contractual obligations are met
and to note deficiencies, but investigations into the Kingman facility 2010 escape and 2015 riot,
as discussed above, indicate ADC is not doing its job. 131 And any purported oversight by ADC
excludes the reporting of prisoner transfers into the state, prisoners injured on the job, and the
number of contract employees working within each facility, to name only a few. 132
In 2020, state representative Walter Blackmun introduced a bill that would create an
independent prison oversight committee of Arizona’s entire prison system. 133 The purpose of the
bill was to increase transparency and accountability within ADC by creating an independent
ARIZ. REV. STAT. ANN. § 39-121.01 (2021).
Stephenson, supra note 114, at 485.
129
Id.
130
Maria Polletta, Ariz. Gov. Picks Fed. Bureau of Prisons Official David Shinn to Lead State Corrections Agency,
ARIZ. REPUBLIC (Oct. 7, 2019), https://www.azcentral.com/story/news/politics/arizona/2019/10/07/david-shinnappointed-director-arizona-department-corrections/3900413002/.
131
ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 106 – CONTRACT BEDS (2020); Clarke, supra note
112; Stuart, supra note 122.
132
ARIZ. DEPT. OF CORR. REHAB. AND REENTRY, DEPT. ORDER 106 – CONTRACT BEDS (2020).
133
H.R. 2894, 54th Leg., 2nd Reg. Sess. (Ariz. 2020).
127
128

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ombudsman to monitor and inspect all prison facilities and investigate complaints from
incarcerated persons. 134 The bill lays out how the independent ombudsman would be selected,
authorizes the office to collect data, and – most importantly – give inspection and investigatory
powers to the office. 135
Scholars have found there are eight fundamental criteria for effective oversight of the
prison system. They are: (1) an agency independent of the corrections department/body; (2) a
mandate to conduct regular, routine inspections; (3) the independent agency must have unfettered
access to all areas – both public and confidential; (4) the independent body must have adequate
resources; (5) there must be a duty to report; (6) the independent agency must take a multi-pronged
approach to evaluating treatment of prisoners; (7) the independent body must have a way to fulfill
both investigative and monitoring functions; and (8) the government agency must be required to
cooperate fully. 136
The legislation proposed by Rep. Blackmun would meet the criteria for effective oversight
of the prison system.137 While the proposed legislation is laudable, it does not do enough to oversee
what ADC and state law has so far failed to do. The proposal does not specifically authorize
investigations into private facilities and does nothing to monitor, track, or report on prison labor. 138
The proposal should incorporate prison labor and labor reporting requirements.
As discussed above, in 2020, a state senator introduced legislation that would create
reporting requirements for injuries sustained by prisoners on the job. 139 The bill mandates ADC
report when any prisoner is injured while working. 140 The requirement applies whether the
individual is working within a public or private prison or for a government entity or private
person. 141
Unfortunately, both Rep. Blackmun’s proposed independent oversight of ADC and Sen.
Kirsten Engel’s proposed prison worker injury reporting requirements were not passed through the
Legislature. 142 But the state should consider looking into an amalgamation of the two proposals.
The prison labor requirement in Arizona is particularly punitive and attention must be paid to the
work force that is mandated to work for pennies an hour. Requiring oversight and simple reporting
expectations is the very least the state can do while it earns millions from the captive labor force.
Change public records law
An effective alternative to an independent oversight board is a change to public records
law. As noted above, public records law in Arizona should apply to private prisons. The statute
governing disclosure of records applies to any agency supported in whole or in part by monies
from the state. 143 Private facilities, whose existence depends solely on state funds, should fall

134

Id.
Id.
136
Deitch, supra note 95, at 833-34. See Michele Deitch, Special Populations and the Importance of Prison Oversight,
37 AM. J. CRIM. L. 291 (2010).
137
H.R. 2894, 54th Leg., 2nd Reg. Sess. (Ariz. 2020).
138
Id.
139
Castle & Polletta, supra note 51. See H.R. 2552, 54th Leg., 2nd Reg. Sess. (Ariz. 2020).
140
H.R. 2552, 54th Leg., 2nd Reg. Sess. (Ariz. 2020).
141
Id.
142
See H.R. 2552, 54th Leg., 2nd Reg. Sess. (Ariz. 2020); H.R. 2894, 54th Leg., 2nd Reg. Sess. (Ariz. 2020).
143
Ariz. Rev. Stat. Ann. § 39-121 (2021).
135

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squarely within this requirement. However, in practice, the state high court and Attorney General
have limited access to private prison records. 144
Oversight without records is an insurmountable challenge. “Without information to help
answer important questions, watchdog organizations, journalists, advocacy groups, and interested
[parties] lose the ability to … hold the government accountable.” 145 By contracting with private
organizations to run governmental functions, the state has implicated the rights of prisoners and
access to operational information when it comes to public accountability. 146 Public oversight
generally comes from outside the state agency, which necessarily implicates the need to access
records and data in order to analyze operational effectiveness. 147
To gain access to records related to operational effectiveness of private prisons and prison
labor, a simple change to the existing statutory scheme could be made. Since private prisons are
contracted with, and paid for by, the state of Arizona, they are supported in whole by monies from
the state. 148 This distinction should make the private entities records part of the public disclosure
requirements. However, because of contract language, judicial interpretations of the public records
laws allow private prisons to avoid disclosing records. 149
To override the court’s exception to disclose when records are against the best interest of
the state, the Legislature needs to step up, amending the statute so private prisons records are
disclosable. Such a change does not need to be cumbersome. In fact, the Legislature can simply
change the definition of “public agency” to receiving fundings in whole or in part to include
privately contracted corporations that run whole sections of a government function. 150
The opacity of prison labor can also be addressed through public records law. The
Legislature should outright ban allowing government contracts to be exempt from reporting and
disclosure requirements. Through this legislative action, the state should require ADC and the
private prisons that have contracted with the state to disclose labor records. Such labor records
should include the number of prisoners working with a breakdown of what type of entity they work
for as well as the rate of pay.
The state should also direct ADC to collect, maintain, and disclose records of prisoners that
are injured on the job. Similar to the bill previously introduced, ADC should be mandated to collect
data of prison labor injuries, but the employer should also be required to report injuries sustained
at their business. Requiring businesses that hire prison labor to report injuries will allow businesses
to be held more accountable for how their work force is treated and to allow ADC to determine if
engaging with that business is still worthwhile.

Conclusion
Overall, Arizona’s prisons need oversight regardless of the mechanism. The intersection
of private prisons and labor requirements for each prisoner have created an unknown labor market.
The prison labor market is excluded from protections typically required of the employer-employee
relationship and leaves such individuals open to exploitation and injury. Being exempt from
ARIZ. PUBLIC RECORDS LAW, supra note 30.
Tartaglia, supra note 22, at 1692.
146
Id.
147
Id. at 1692-93.
148
Id. at 1733.
149
Id.
150
Ariz. Rev. Stat. Ann. § 39-121 (2021).
144
145

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reporting requirements allows employers to operate in the shadows, leaving prisoners unable to
obtain benefits that are afforded to other types of employees. The state should work to change this
structure. An oversight board would allow for greater protections to the prisoner and increase
transparency. Additionally, a change to the public records law, specifically incorporating private
prisons and prison labor into disclosure requirements, would also allow for more transparency and
accountability.

16