By: Alexis Boyd
Published on: October 18, 2023
The Incarcerated Workers Organizing Committee (IWOC) is a labor union specifically devoted to organizing incarcerated people across United States and parts of the United Kingdom.[1] IWOC’s main goals are the repeal of the Thirteenth Amendment’s exception to slavery, the closing of all state, federal, and private jails and prisons, and the release of all political prisoners.[2] Many prison rights advocates support the repeal of the Thirteenth Amendment because it excludes incarcerated individuals from protections against slavery or involuntary servitude.[3] Additionally, incarcerated people’s status as legalized slaves prevents them from fully accessing guaranteed First Amendment or labor rights.[4]
Labor organizing amongst incarcerated workers is a critical issue for many reasons. Strikes by incarcerated people serves as a form of freedom of speech by bringing to light the human rights violations in American prisons, which is a direct result of incarcerated people not being legally protected from abuse by their employers.[5] Unlike most workers, incarcerated people are not protected by federal or state employee protections and are at the complete mercy of their employers, which also serve as their incarcerators.[6] These workers are also at an increased risk of injury on the job, which has become exacerbated by the Covid-19 pandemic. For these reasons, the Thirteenth Amendment must be repealed to remove the exception against slavery for incarcerated people. Additionally, incarcerated workers must receive the same state and federal employee protections as other American workers to be fully protected.
Current Treatment of Workers
While incarcerated people are not protected under basic employment laws, they work in similar positions as their non-incarcerated counterparts. For example, they fight forest fires, manufacture goods, and some even clean the governor’s mansion in Nebraska.[7] The labor from incarcerated workers is essential to the American economy.[8] Currently over half of the United States’ 1.5 million prison population is employed, but receive little to no pay, with the average pay being 20 cents per hour.[9] This pay is essential for incarcerated people, who use the money to support themselves through commissary, support their families, and pay restitution to victims.[10]
Despite incarcerated people contributing so much to the economy they face many hardships. According to the ACLU’s report titled, Captive Labor: Exploitation of Incarcerated Workers, most incarcerated workers are not able to afford necessities with their wages, are concerned about their safety while working, receive no formal job training, and are being forced to work or face additional punishment.[11] Unlike non-incarcerated workers, incarcerated workers have no right to choose their work, and work assignments can also be used by prison officials in a manner.[12]
The government is also allowed to take up to eighty percent of incarcerated workers’ wages for costs such as room and board, court fees, restitution to victims, or fees related to maintaining prison buildings.[13] On top of the low wages, incarcerated people are forced to pay high costs for calling family and friends, hygiene products, and medical care. Families of incarcerated people also are greatly impacted by incarcerated people’s low wages since, families spend around $2.9 billion a year on incarcerated people’s commissary accounts[14] and phone calls.[15]
Most prison labor (80%) involves maintenance of the prison, and much of this labor offsets the cost of the prisons themselves.[16] Other types of prison labor include vital roles such as maintaining public buildings or aiding during emergencies and disaster relief.[17] Because incarcerated people are given limited training, they are also at serious risk for work related injury.[18]
Incarcerated workers were left especially vulnerable during the Covid-19 pandemic. Many were forced to work at the height of the pandemic and were threatened with solitary confinement or a later parole date if they refused to comply.[19] Workers in forty states were forced to make masks, hand sanitizer, and other protective equipment despite not having access to these items themselves.[20] Some were even given morbid and dangerous duties such as cleaning hospital sheets and gowns from Covid patients, transporting bodies, building coffins, and digging graves.[21] A third of incarcerated people have contracted the Covid-19 virus as a result of exposure and lack of protection.[22] Thus, the Thirteenth Amendment must be repealed as it prevents incarcerated workers from receiving protection from government regulation agencies such as the Occupational Safety and Health Administration or Department of Labor, which could otherwise regulate and enforce protective measures on government and private prisons.
Forms of Resistance/ Lack of Protection
Despite lack of protections, incarcerated people have attempted to shed light on their poor treatments and especially poor working conditions by striking. For example, IWOC, which was incorporated in 2014 and has twenty-one local chapters in over sixteen states and D.C., has created a union led by incarcerated workers.[23] This union was formed as a result of the planning and execution of the September 9, 2016 prison strike, which was the largest prison strike in U.S. history.[24] The strikes began as an outcry to the inhumane conditions of incarcerated people in Alabama.[25] The demonstrations sparked a movement amongst incarcerated people in prisons outside of Alabama due to strikers leaking footage of their demonstrations –leading to the U.S. Department of Justice formerly investigating the prison.[26]
In 2022, IWOC and Jailhouse Lawyers Speak (JLS), organized “Shut ‘Em Down 2022,” which originally planned demonstrations in prisons across the U.S. from August through September to disrupt prisons and highlight the atrocities and unfair treatment of workers in these institutions;[27] however, the only notable statewide strike occurred in Alabama.[28] Unfortunately, due to lack of protection for incarcerated workers, the incarcerated strikers and their fellow inmates suffered retaliation at the hands of the prison staff and officials.[29]
Prison strikes are the result of incarcerated workers not having collective bargaining rights, meaning incarcerated people do not have the right to form legally recognized unions or organize themselves to create collective action against their prison employer. The Thirteenth Amendment abolished slavery everywhere in the U.S. except as punishment for a crime, which is why there is no legal obligation for prisons to pay for incarcerated people’s labor.[30]
Currently, incarcerated people have no legal way to fight against workplace violations. Federal Courts have been unwilling to extend employee protections such as the Fair Labor Standard Act or the National Labor Relations Act to incarcerated workers.[31] Similarly, federal courts have failed to protect incarcerated workers’ freedom of speech leading to a restricted amount of ways that incarcerated workers can express their discontent with their working conditions .[32] The lack of protections for incarcerated workers is even more egregious in private prisons since the government basically consents to private actors enslaving and forcing labor upon those charged with a crime.[33] As the law stands now, private and government run prisons have more legal protections to create unsafe and abusive work environments for incarcerated people, than incarcerated people have protections to fight against these violations.
Conclusion
Prisons have been able to escape accountability for not adequately compensating incarcerated people’s labor by explaining away workplace abuses and violations as a form of carceral punishment, which courts have been all too happy to endorse.[34] Thus, the Thirteenth’s Amendment’s exception to slavery for incarcerated people must be repealed. Allowing private actors and the State to use and abuse people for the purpose of cheap labor goes against the heart of the Thirteenth Amendment and the numerous civil rights acts that followed.
Yet, it is not enough for the Thirteenth Amendment to be repealed: states and the federal government must both remove barriers and provide worker protections for incarcerated people. For example, state and federal lawmakers should eliminate laws that punish incarcerated workers for not participating in work programs, guarantee the same wage rate and labor protections for incarcerated people as other employees, and provide dignity and proper training to incarcerated people so they can apply their skills after incarceration.[35]
Without state or federal intervention, there are no protections for incarcerated workers’ demonstrations against dangerous prison conditions.[36] Despite the growing support for labor unions and strikes, many incarcerated people have been punished for speaking out about their deplorable working conditions.[37] The current Covid-19 pandemic has only made matters worse as incarcerated people speak out about the dangers of working in unprotected and unmonitored prison employment.[38] Thus, the legislature must also specifically mandate that the First Amendment protect incarcerated people ‘s freedom of speech and association similar to non-incarcerated people. Incarcerated people can only truly unionize and protect their rights if they are freed from the barriers set in place by the Thirteenth Amendment and receive basic employment protection and First Amendment rights.
[1] See Incarcerated Workers Organizing Committee, https://incarceratedworkers.org/about (last visited on Jan. 27. 2023)
[2] Id.
[3] See Captive Labor: Exploitation of Incarcerated Workers, ACLU (June 15, 2022), https://www.aclu.org/news/human-rights/captive-labor-exploitation-of-incarcerated-workers.
[4] See Jones v. N. Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 130 (1977).
[5] See ACLU, supra n. 3.
[6] See id.
[7] Isabelle Holt, The Case for Unemployment Insurance for Incarcerated Workers, On Labor (Mar. 23, 2022), https://onlabor.org/the-case-for-unemployment-insurance-for-incarcerated-workers/.
[8] See id.
[9] See Incarcerated Workers Organizing Committee, supra n. 1 (demonstrating that institutions such as UNICOR, the Federal Prison Industries program, makes half a billion dollars in net sales and millions in profits from prison labor. Additionally, state prisons earn more than one billion dollars from prison labor, and private corporations also profit from prison labor).
[10] Id.
[11] See ACLU, supra n. 3.
[12] Id.
[13] Id.
[14] See Sending Money to An Inmate, PrisonPro, https://www.prisonpro.com/content/sending-money-inmate (last visited Feb. 01, 2023) (defining commissary account as a personal bank account within prisons that incarcerated people can use to by basic necessities from the commissary, which is an independent store within a prison).
[15] See ACLU, supra n. 3 (explaining that many families go into debt as a result of accumulated costs of providing for incarcerated family members).
[16] Id.
[17] Id.
[18] See id. (noting that most prisons do not keep good record of incarcerated worker injuries, but that the state of California reported 600 injuries within four years for its state prison).
[19] Id.
[20] Id.
[21] Id.
[22] See id. (finding that more than 3,000 incarcerated people died due to overcrowding, lack of access to virus protections, and inadequate healthcare).
[23] See Hunter Southall, From Behind Bars, Incarcerated Workers Are Unionizing, Striking, On Labor (Dec. 28, 2022), https://onlabor.org/from-behind-bars-incarcerated-workers-are-unionizing-striking/ (clarifying that this union is not officially recognized by the National Labor Relations Board despite being an official chapter of Industrial Workers of the World (IWW) which represents 9,000 workers from a variety of industries).
[24] See Incarcerated Workers Organizing Committee, supra n. 1.
[25] See Southall, supra n. 23.
[26] See id.
[27] See id.
[28] See id.; see also Michael Sainato, Alabama Prisoners Strike over ‘Horrendous’ Conditions, The Guardian (Oct. 06, 2022), https://www.theguardian.com/us-news/2022/oct/06/alabama-prison-strike-work-conditions (highlighting how incarcerated workers in all thirteen of Alabama’s prisons went on strike from their service jobs).
[29] See id. (alleging strikers suffered inadequate medical and mental treatment and poor nutrition).
[30] See Southall, supra n. 23 (noting that five states Alabama, Arkansas, Florida, Georgia, and Texas do not pay incarcerated workers).
[31] See id. (citing Ndambi v. CoreCivic, Inc and Jones v. North Carolina Prisoners’ Laboratory Union as demonstrations of the courts unwillingness to provide worker protections to incarcerated people); see also Ndambi v. CoreCivic, Inc., 990 F.3d 369 (4th Cir. 2021) (refusing to extend FLSA protection to detained immigrants, stating that detainees were similarly situated to incarcerated workers and, thus, fell outside the “traditional employment paradigm”).
[32] See Jones, 433 U.S. at 130 (holding that incarcerated workers do not have the right to unionize or associate since their First Amendment rights can be restricted to meet the penological needs of prisons).
[33] See Swap Agrawal, News & Commentary, On Labor (Jan. 29, 2023), https://onlabor.org/january-29-2023/ (detailing that the Ninth Circuit will hear a case brought by the NAACP against Arizona Department of Corrections for the state’s use of private prisons and detention centers because it violates the Eight Amendment and the Thirteenth’s Amendment’s ban on slavery).
[34] See Ndambi, 990 F.3d 369; see also Jones, 433 U.S. at 130.
[35] See ACLU, supra n. 3.
[36] See Southall, supra n. 23.
[37] See Michael Sainato, Alabama Prisoners Strike over ‘Horrendous’ Conditions, The Guardian (Oct. 06, 2022), https://www.theguardian.com/us-news/2022/oct/06/alabama-prison-strike-work-conditions.
[38] Id.