This is Part Two of a four-part series. Part One gave a description of a recent prison uprising at Willacy County Corrections Center in south Texas. The event provided a platform for introducing the concept of incarcerated workers and the intersections between different areas of law that apply to incarcerated workers. Part Two will provide the history of incarcerated labor and the form it takes today. Part Three will give a first cut of the law as applied to incarcerated workers. Finally, Part Four will discuss some of the broader implications of the prison “free” labor system.

Historical roots of prison labor

Incarcerated labor has its roots in the Reconstruction south. In the late 19^th and early 20^th centuries, Southern states ran prisons populated mostly by Black men. Some of these prisons operated as profit-making enterprises internally, like at Parchman Farm (discussed below), See Generally David Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice, while other prisons leased out their “convicts” to private landowners or businesses to do manual labor, ranging from farming to mining. Businesses benefited from these programs by having access to a nearly free work force, paying only for costs of food and housing for the workers and a payment to the state “leasing” the captive laborers. From 1866-1896 the State of Tennessee widely adopted a system of convict leasing, aiming to make prisons “self supporting” and to provide the state with additional revenue. The practice was an effective money making scheme for the state and for businesses.

Tennessee’s convict labor practice also helped Tennessee Coal and Iron Company (TCI) to keep their other labor costs low, as Tennessee’s convict leasing system gave TCI “an effective club to hold over the head of free labor.”  In the late 19^th century, the practice was at the center of a dramatic industrial-labor battle. Organized labor campaigned hard to stamp out convict leasing because it was used to bust unions and drive down the cost of labor. In July of 1891, after two decades of minor labor uprisings, free white miners who were on strike launched a series of attacks on Anderson County, Tennessee. Three hundred miners took charge of forty prisoners and their overseer/prison guards, and “marched them and their guards five miles to Coal Creek, sealed them in box cars and shipped them to Knoxville.” Then, they called on Tennessee Governor James Buchanan to negotiate new labor protections. In 1893, after the miners had repeated their attacks multiple times,  “the general assembly of the state passed legislation to abolish convict leasing at the end of the lease contract in 1896.”

In addition to convict leasing, some prisons operated for-profit operations internally using incarcerated labor. Parchman Farm, now called Mississippi State Penitentiary is the antecedent of the in-house varieties of prison labor that we see in prisons today. Parchman Farm was part of “a movement to restore white supremacy and ensure a source of cheap free labor to replace slave labor,” as Margaret Winter and Stephen Hanlon of the ACLU state in their piece Parchman Farm Blues: Pushing for Prison Reforms at Mississippi State Penitentiary. Parchman Farm, which opened in 1903, was, in the words of then Mississippi Governor James K. Vardaman, “run ‘like an efficient slave plantation’ that provided young black men with the ‘proper discipline, strong work habits, and respect for white authority.’”

These institutions and practices represent the ancestral roots of prison labor in the United States. While there is more history that might be examined, this piece will jump forward a few decades to take a look at incarcerated labor’s modern iterations.

Prison labor work systems

Prisons are organized in a variety of ways. Public prisons are operated by the federal government or a state government, or prisons are operated by a private company under contract with the federal or local government. Currently, the most prominent private prison companies are Correction Corporation of America (CCA), GEO Group, and the Management and Training Corporation (MTC). Each of these institutions uses prison labor.

Prison labor is also organized in a variety of ways. Within these work systems, incarcerated workers hold many types of jobs. The following will describe a few of the common work systems, highlighting job assignments and worker pay.

A. Public Prisons

All individuals incarcerated in a federal prison who have been medically cleared are required to work. Failure to do so results in punitive recourse, 2 Rights of Prisoners § 8:4 (4th ed.), including solitary confinement. They will either be given a prison maintenance assignment or assigned to a Federal Prison Industries detail. Incarcerated workers have no right to a particular job assignment. See 2 Rights of Prisoners § 8:4 (4th ed.) Federal Bureau of Prisons’ officials sets the worker pay scale for prison maintenance jobs, which according to The Prison Policy Initiative was between $0.12-$0.40 in 2003.

Federal Prison Industries, Inc. (FPI or otherwise known by the trade name UNICOR) is a “wholly-owned government corporation,” which is “authorized to operate industries in federal penal and correctional institutions and disciplinary barracks” under federal law. 18 U.S.C. § 4121 to § 4129. FPI has industrial and service operations at 78 factories located at 62 prison facilities, employing 16 percent of federally incarcerated workers as of September 30, 2014. FPI work assignments pay from $0.23 to $1.15 per hour, however incarcerated workers working for FPI who have financial obligations, including “cost of incarceration fees” commonly assessed against incarcerated people for prison room and board, are required to pay 50 percent of their earnings to the Inmate Financial Responsibility Program. Under law, FPI is restricted to selling its products to the Federal Government. The U.S. Department of Defense is its principal customer.

Incarcerated workers in public prisons produce products like license plates, mattresses and bedding, brooms, office furniture, prison cell accessories, and gun containers and handcuff cases for police officers. Most of these products end up in government facilities, state universities, and education institutions.

Incarcerated worker pay can vary depending on the state of incarceration. For example, in 1993, the average hourly rate paid at a prison camp in Nevada was $0.13, according to a U.S. Senate prisoner labor report. The same report indicated that the incarcerated workers in Georgia and Texas were paid exactly $0. The average wages per hour for incarcerated workers in non-industry work was $0.93 during this time, and more recent articles written on the subject indicate that incarcerated workers in all states continue to be paid between nothing and pennies on the hour.

B. Prison Industries in Public and Private Prisons

In many public and private prisons, work systems produce materials for third party private companies. This type of work system is often called “prison industry.” Prison work crews sew lingerie for companies like Victoria’s Secret, as well as U.S. military uniforms. Prisoners also work as farm laborers, as software shrinkwrapers, on construction crews, and in call centers.

Ohio Mansfield Correctional Institution and its partnership with Ohio Penal Industries (OPI) provides a good example of what prison industries look like. According to a 2008 report, 150 inmates were working in de-flashing shops and cardboard box shops. All of that work was for private businesses, with 95 percent of that work done for Honda and 5 percent for Ford Company. Inmates working in the OPI shops make between $0.25to $0.40 cents per hour, with exact pay based on a grading scale.

C. Private Detention Centers

In U.S. immigration detention centers, detained persons are also subjected to compulsory labor by the public or private entity that operates their facility. These imprisoned workers labor in mostly prison maintenance jobs, and estimates of the number of immigrants laboring in detention centers in 2013 range between 60,000 and 135,000. Detainees work for free, are paid with sodas or candy bars, or are paid less than $1 per hour depending on the facility. According to the New York Times, this “cheap labor….saves the government and the private companies $40 million or more a year by allowing them to avoid paying outside contractors the $7.25 federal minimum wage.”

In summary, modern incarcerated labor takes a variety of forms. While different institutions profit from incarcerated labor, one thing is clear: incarcerated individuals continue to hold traditional jobs, but are paid at wages far below those mandated for other classes of workers. Part Three of this series will explore the legal status of incarcerated labor and the terms and conditions under which these workers labor, beginning first with the Thirteenth Amendment’s prohibition of slavery and involuntary servitude, before exploring statutory and common law.