Excerpted From: Aris X. Hart, Slavery with Extra Steps: Why Prison Labor as Criminal Punishment Encourages Government Rent-seeking, 18 Journal of Law, Economics & Policy 71 (Spring, 2023) (155 Footnotes) (Full Document)


ArisXHartWhat do states do when they do not have enough people to work on public projects, but hiring people is too expensive? Across the country, state and federal prisons provide the answer: cheap inmate labor. In 2018, nearly 14,000 firefighters battled fires in California. Approximately 2,000 of these firefighters were prisoners in the California prison system, while approximately 1,500 more inmates worked in support roles for the firefighter inmates. These inmates do the same work as non-inmate firefighters, but only receive one dollar per hour to fight fires. Cal Fire, the state's department of Forestry and Fire Protection, also employs non-inmate firefighters starting at the California minimum wage, which was eleven dollars per hour in 2018. These firefighters fight the major fires in the state, and also receive overtime pay to augment wages.

This situation is just one example of a state using cheap prison labor to cut hiring costs. To save money, states compel inmate labor and reap huge windfalls in labor cost savings, but also use inmates to increase prison revenues. Under the Thirteenth Amendment, this is all perfectly legal. The fact that states can profit from cheap inmate labor opens the door to perverse sentencing incentives and systemic abuse.

States have a financial interest in punishment and benefit from the fruits of compulsory prison labor. States are rational actors and, accordingly, act to further their profit interests. Prisons force inmates to engage in free or cheap labor that is lucrative for states, which invites and facilitates inmates' abuse by the states.

The United States has a long history of exploiting labor for profit. In the pre-Civil War era, slaves provided massive profits to southern and northern states and enabled slaveowners to get cheap raw materials at low cost. At the same time, the first state prisons began cropping up and became more centralized from the late 1790s through the mid-1800s. In the post-Civil War era, incarceration rates exploded, especially throughout the South. This is because prisons were very profitable for states through the mid-twentieth century, and state economies were dependent on cheap labor. States originally compelled inmates' labor through either private companies contracting with prisons for in-prison work or prisons leasing convicts out to private entities. Currently, however, the system of profit-driven prison labor is supported by, ironically, the Thirteenth Amendment, which prohibits slavery or involuntary servitude “except as a punishment for crime.”

The American prison-prisoner dynamic is problematic because the government can compel people to work but also make money from forced labor. This makes the government interested in incarceration outside of general punishment goals. The government chooses to make as much money as possible for itself and any private actors contracting with states. Profit incentives for prisons create perverse punishment incentives for states and the U.S. government. Any punishment levied in connection with profit interests is a clear example of government rent-seeking.

The very fact that the government can compel free or cheap labor opens the door to abuse and flies in the face of traditional penological goals. This Comment will address the economic pitfalls of compulsory prison labor and propose a potential solution for the problem. The only permanent solution is amending the Thirteenth Amendment, removing “except as a punishment for crime whereof the party shall have been duly convicted.” This would be a difficult pill for states to swallow alone, so such an amendment would need to be accompanied by independent federal legislation, paying states to offset short-term cost increases of stopping prison labor.

Part I of this Comment will address a brief economic history of prison labor, inmate production, and a contemporary analysis of the prison labor structure. Part I will also briefly describe the regulatory background surrounding state prisons. Part I will then address prevailing government incentives for reform.

Part II will discuss why compelling prisoners to perform productive labor creates perverse punishment incentives, and why this is societally undesirable. Part II will also argue that justifications for punishment fall flat once profit incentives are introduced into punishment. Part II will then explore the implications and counterarguments for both a Constitutional amendment and the necessary payout for the amendment.

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There is hope for ending the profit-driven exploitation of people in prison. This hope stems from the fact that the ability to compel productive labor has, in no small part, made society worse off economically. Society is worse off because the primary winners are prison companies and politicians. Taxpayers bear the burden of paying for both public and private prisons, while states have a financial interest in greater incarceration rates, which in turn increases costs to the taxpayer. Continuation of the current prison system means that states like California will continue to spend $9.03 billion per year simply housing inmates and dispensing any costs savings directly to private actors who lobby and invest for greater rates of incarceration and cheap labor.

Compulsory prison labor, enabled by the Thirteenth Amendment, does not serve any penological goals, and is just a ballooning expense for taxpayers. Given that prison labor is inherently exploitative, and the perverse incentives inherent in our prison system, the Thirteenth Amendment should be amended. The portion of the Thirteenth Amendment reading “except as a punishment for crime whereof the party shall have been duly convicted” should be removed. A constitutional amendment is not just a solution, it is the only permanent solution.

Attorney and Founder of Safeguard Law, PLLC in Washington, D.C. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.. J.D. 2020, George Mason University School of Law; B.A. Political Science; Economics 2017, American University.