“My three-year-old son thinks I’m a firefighter, which I like to think I am, too.” Joseph Sevilla, told reporters during the Los Angeles wildfires. Sevilla is a firefighter, but he also is incarcerated. He wears an orange uniform on the job and earns just $5.80 to $10.24 for an entire 24-hour shift. Non-incarcerated firefighters, conversely, earn $42.36 per hour. 

California deployed over 1,000 incarcerated firefighters to fight the Los Angeles wildfires in January. Images of these incarcerated firefighters, and the stories they shared from the frontlines, captivated global attention and drew criticism. Incarcerated firefighters earn less pay, are more likely to get injured, and can rarely secure firefighting positions once released due to their criminal record. 

These brave workers forced us to confront a harsh reality: people in prison are risking their lives for so little pay. How is this possible? A loophole in the 13th Amendment, which abolished slavery “except as a punishment for crime.”

Ironically, two months prior, California voted against a ballot measure to close this loophole also found in the state constitution. Ballot measures are instrumental to ending forced labor in prison. Courts offer another avenue. But it is hard to bring successful lawsuits because of the 13th Amendment, requiring creative litigation strategies or changes in state constitutions. Prison labor litigation recently has had some exciting wins and unsurprising setbacks. This update on the legal landscape of prison labor litigation gives some examples of different strategies advocates are trying and demonstrates how even pending litigation can advance change.

Alabama: Putting the State Constitution to the Test

One approach to addressing prison labor involves ending the penal exception in the 13th Amendment through state constitutional amendments. Alabama voters did just that in 2022, removing the exception for slavery and involuntary servitude as a punishment for crime. In a novel state court case, five incarcerated workers are testing the promise of this constitutional amendment. They challenge an executive order and bill signed by Governor Kay Ivey shortly after the amendment passed that increased the punishments imposed on incarcerated workers who refuse to work. But in just two-sentences, the trial court dismissed the case under state sovereign immunity. The plaintiffs are not deterred; they appealed and the case is now before the Alabama Supreme Court. 

 Another lawsuit, this one in federal court, also relies on the amended state constitution, along with a host of other legal claims. Ten formerly and currently incarcerated individuals are suing to abolish “convict leasing,” the practice of prisons leasing out incarcerated people to state and private businesses. They allege that the state “overwhelmingly” and “disproportionately” denies Black people parole so that they are forced to participate in the prisons’ “extremely lucrative work-release and work-center programs,” generating $450 million annually for the state. And that this is a violation of the state constitution prohibition on prison labor. 

The lawsuit also advances a few other legal claims: violations of the U.S. constitution, the Trafficking Victims Protection Act, and Racketeer Influenced and Corrupt Organizations Act. Notably, several labor unions joined the lawsuit arguing that the use of incarcerated workers lower wages and worsens working conditions for all workers, making it harder to organize. 

In June, a federal judge denied a preliminary injunction, finding the plaintiffs failed to establish that racially discriminatory intent or purpose motivated the parole policies and subsequent decisions. In March, the court granted the state’s motion to dismiss but allowed the plaintiffs to amend the complaint. 

Louisiana: Challenging Angola’s Farm Line

In the absence of a state constitutional amendment, litigants must rely on other legal claims. In one such case, a group of formerly and currently incarcerated workers sued to end a particularly oppressive labor practice at Louisiana State Penitentiary (commonly known as “Angola”), the Farm Line. On the Farm Line, workers perform tedious agricultural labor like “picking rotten watermelons, okra, and other crops with their bare hands, weeding and plucking grass by hand, and watering crops using Styrofoam cups.” The work is especially dangerous given the extreme heat and humidity in Louisiana, and the fact that the prison denies workers protections like shade, sunglasses, and frequent breaks. The lawsuit challenged the Farm Line under the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.  

Amid the ongoing lawsuit, plaintiffs also sought a preliminary injunction and temporary restraining order prohibiting the Farm Line when the heat index reaches or exceeds 88 degrees. In July 2024, a federal judge ordered officials at Angola to change their heat-related policies but allowed them to continue forcing workers on the Farm Line even in heat. The full case is still ongoing. 

Maryland: Opening up the Fair Labor Standards Act 

Finally, employment law may offer some relief, but likely only in narrow circumstances. Last May, the Fourth Circuit opened the door for incarcerated workers who work outside of the prison to be entitled to minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). Generally, courts are “skeptical of [FLSA] claims brought by incarcerated workers,” the Fourth Circuit stated, but “there is no categorical rule that such workers cannot be covered by the Act when they work outside their detention facility’s walls and for someone other than their immediate detainer.” 

As part of a class action lawsuit, Michael Scott sued for unpaid wages and overtime against his employer, Baltimore County, where he worked at the County’s recycling center. There, he earned just $20 a day despite regularly working nine-to-ten hour shifts. 

The lower court dismissed the claim and granted summary judgment for the County. It found that because these incarcerated individuals worked for the County and the “economic advantage” of their labor stayed within the County, they benefited as beneficiaries of the Department of Corrections. So, although they worked outside of the prison, their labor was functionally the same as work within the prison, and thus not covered by the FLSA. 

The Fourth Circuit vacated and remanded, holding that the lower court used the wrong legal standard. The key difference here is that these workers work outside of the detention facility, alongside non-incarcerated workers. Therefore, the recycling center could be more like a typical employer covered by the FLSA but deferred to the lower court to make the initial factual determination now equipped with the proper standard. Meanwhile, the County challenged this decision, requesting a rehearing en banc that was denied and, in November, petitioning the Supreme Court to hear the case. 

Pending Litigation Can Be a Win

As we await the decisions in these cases, the power of ongoing litigation should not be discounted. Since the filing of the Alabama parole lawsuit, the parole rate has nearly quadrupled. And Hyundai, to take another example, last year ended its contract with the Alabama Department of Corrections amid increasing legal challenges and public scrutiny. But eliminating all work opportunities for incarcerated workers ought not be our long-term goal. Some incarcerated workers appreciate private sector employment opportunities, which have higher wages and give workers the chance to leave the prison facility. Advocates ultimate focus therefore should be on ensuring fair and dignified work for incarcerated workers by improving work opportunities and conditions. And also ensuring that incarcerated workers have the power to choose whether to work at all.