The dangerous conditions that incarcerated people face when forced to work during the spread of COVID-19—whether it’s hours spent on factory lines or fighting fires—is reinforcing a campaign to close a perceived loophole in the 13th Amendment that advocates say permits prisoners to be used as “slave labor.”
A recent highlighted example is a prison-based factory in Chino, Ca., where “amid the drive for production, factories continued to operate even as infections increased inside prison walls,” according to a recent story in The Los Angeles Times.
“It is a bureaucratic decision to keep people working for pennies an hour during a pandemic,” said Kate Chatfield, director of policy at the Justice Collaborative, a national organization that advocates for criminal justice reform, in an interview in the Los Angeles Times.
“This should appall everyone who wants to live in a civilized society.”
Sen. Jeff Merkley(D-OR), determined to put an end to decades of enforced labor in American prisons, is sponsoring a petition drive calling for a constitutional amendment to the 1865 loophole that permits “involuntary servitude” for those convicted of a crime, called the “punishment clause.”
Many critics see a straight line from convict leasing under the 13th Amendment in the 19th century to today’s mass incarceration.
“We preserved slavery in the United States to diabolical effect,” Merkley said on “The Briefing” via “NowThis” podcast. “It continues to be a blight on our nation and in the conversation on systemic racism we have to see this is a key piece of it and we need to change that.”
Sen. Merkley acknowledged the high hurdles his proposal must clear: two-thirds of the Senator and two-thirds of the House must vote for the amendment, and a majority of the states to ratify.
Forced labor in prisons has its roots in the post-Civil War Reconstruction era. Southern planters did not want to pay the labor force that had previously worked for free to produce the economic capital of the South.
Senators from former slave states insisted on the punishment clause.
Southern states codified punitive laws, known as the Black Codes, to arbitrarily criminalize the activity of their former slaves. Loitering and congregating after dark, among other innocuous activities, suddenly became criminal. Arrest and convictions bound these alleged criminals to terms of incarceration, often sentenced to unpaid labor for wealthy plantation owners.
Today’s prison population may not be consigned to plantations, but unfair labor practices abound.
In most states inmates work for less than $1 an hour; in five states, they work for free.
“We have preserved slavery in the U.S.; we’ve simply transformed it,” said Prof. Michele B. Goodwin of the University of California-Irvine.
“In the case of these California firefighters who are risking their lives every day while battling these fires, it is simply inhumane that they would not be able to earn what they deserve,” she said.
“And let’s be clear, in some communities, they are protecting multi-million-dollar homes.”
Apart from the COVID-19 and firefighter news stories, it is not commonly understood in America how pervasive products and goods made by prisoners are in the marketplace.
Goodwin said the companies involved, ones that make use of enforced prison labor in some way, include Macdonald’s, Whole Foods, Walmart, AT&T, Cargill, and Costco.
According to a story on NPR, “Incarcerated people do everything from building office furniture and making military equipment, to staffing call centers and doing 3D modeling.”
Sen. Merkley said he does not oppose work in prison, which can relieve boredom and build skills. The debate is whether it’s involuntary, performed under safe conditions, and compensated fairly.
“This is not an argument that jobs in prison are always a bad thing,” said Sen. Merkley.
“I’ve spoken to many prisoners in Oregon who say, ‘The thing that keeps me sane is my daily routine. The skills I’m learning here are the skills that I will use to get a job outside.’ ”
However, in some cases, the jobs that they are doing in prison for pennies they can’t get after release because the inmates have a felony record. So the training aspect is quite diminished, experts say.
Moreover, prisoners, while working long hours, are not earning the money to cover the fines and fees they are often burdened with, or pay for necessities or phone calls to family.
And the overall economy and job market is warped by this level of goods produced for free or for pennies, advocates say.
How 13th Amendment Loophole Created America’s Carceral State, by Flores Forbes, The Crime Report, June 3, 2019.
Nancy Bilyeau is deputy editor of The Crime Report.