PROPOSED CHANGES
Proposed Structure of Needed Reforms:
First, federal and state
statutes prohibiting the manufacturing, purchase, sale and shipment of
prison-made goods should be repealed. Prison-made
goods should be allowed to move in interstate commerce to the same extent as
any other product, without special labeling requirements. The states, through
federal preemptive legislation or otherwise, should eliminate their
restrictions on prison industries and prison labor.
Second, complete freedom
of contract should prevail between prison employers, prisoners, and federal and
state correctional institutions.
Prisoners and private businesses would negotiate on a laissez-faire basis. Federal and state governments should
encourage contracts between private business and prisoners regarding negotiated
wages, hours and conditions of employment.
Prison industries could be established within space rented from the
prison or in separate secure facilities.
Prisons or prisoners might provide entire crews to businesses. Prison industries could be established within
space rented from the prison or in separate secure facilities. Transportation, food, clothing and shelter
might all be addressed in contracts if industries chose to employ workers
outside existing prison walls.
Involuntary convict leasing has a tragic record and should be avoided.
Third, substantial
immunity from lawsuits should be provided to prison industries to prevent
burdensome litigation under federal and state employment-related statutes.[1] Employment laws, wage and hour legislation,
insurance and restrictions protecting law-abiding workers should exempt prison
labor and industries, with the exception of OSHA and scaled-back workers’
compensation for permanent injury. The
creation of a laissez-faire
employment regime would bypass the massive layer cake of employment laws that
make American labor substantially more expensive than unprotected labor in
foreign countries.
Fourth, subject to their
contracts, private businesses would have the unfettered right to return
offending workers to the general prison population. Prisoners could voluntarily return to the
general prison population in the event private employers did not provide a
better working or living environment. Protection
should be granted to employers to facilitate labor markets in which the
prisoners could be sent back to the general prison population at any time and
prisoners could voluntarily elect that same return in the event private
employers did not provide a better environment than the general prison
population. These actions would be subject to whatever contracts the employers
and prisoners made prior to the commencement of employment.
Fifth, money earned by
prisoners would be put into a trust account, pending good behavior and subject
to claims for child support, victim restitution, court costs, fines and their
own room and board in prison.
Misbehavior by prisoners under contracts might be forfeited after escape
attempts, violence, theft or other violation of agreed rules. Prisoners would undoubtedly behave to assure
their continued employment (and sometimes residence) in these better secure
environments. Employers could enforce
discipline and rules with the more powerful discretion allowed to laissez-faire employers. Prisoners would then have an investment in
their own good behavior, learn pro-social skills and develop healthy work
habits.
Sixth, state and federal
governments would provide administrative and judicial oversight of prison labor
and industries, to assure prisoners received their agreed compensation upon
release and were not abused. U.S.
Magistrate Judges already serve the function of deciding lawsuits filed by
prisoners.
Seventh, a common
concern of those who are suspicious of business is that, like in the convict
leasing age, the legal system will provide cheap labor by finding more
criminals guilty and increasing the length of prison sentences. This legitimate
concern is based in the evidence that criminal convictions fed the need for
low-cost labor after the Civil War and even up to the Second World War.[2] Therefore, the opening up
of vibrant prison industries ought to include an increase in alternative
sentences such as judicial corporal punishment, drug treatment, community
service, parole, probation and other punishments short of incarceration. The
revitalization of prison industries does not depend upon increasing the 2.26
million prisoners now behind bars. The reduction of the American prison
population and the freeing of prison labor could proceed simultaneously. Incarceration
is not a vital feature of our republic.
Incarceration as we now know it did not exist when the U.S. Constitution
was written. In fact, the Declaration of
Independence re-directed the most successful form of British punishment,
transportation, away from the Thirteen Colonies and towards Australia.
Eighth, to address the
stiff unfair competition posed by prison industries and labor to free
businesses and labor, prison industries might be limited to manufacturing goods
now exclusively made overseas.
Additional accommodations could include allowing competing employers
equal access to prison labor or a requirement that prison labor support
existing jobs in the free sector. Union
shops, for example, might be supported if their prison industry suppliers sold
goods and components to them at lower prices.
With the diversification of the world economy and production methods,
competition with American labor and businesses outside prison will not likely
be as great as many perceive and can be minimized.
[1]
See, Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992) (prisoner
performing janitorial, kitchen helper and similar duties directly for
Department of Corrections not entitled to minimum wage under Fair Labor
Standards Act; different results in other cases); Noah D. Zatz, “Working at the
Boundaries of Markets: Prison Labor and the Economic Dimension of Employment
Relationships,” 61 Vand. L. Rev. 857
(April 2008) (complexity of potential claims discussed).
[2]
Douglas A. Blackmon, Slavery By Another Name – The Re-Enslavement of Black
Americans from the Civil War to World War II (2008).