Print Commentary: A Legal Iteration of Slavery in Prison

Editor's Note: This article, authored by Arianna Scott, is a legal commentary related to Darby Hopper's "Reforms with History: The Return of Prison Farms" in our Fall 2017 issue. We encourage readers interested in more information to refer to our print journal for unabridged legal analysis.

Prisons are typically enormous institutions with innumerable isolated jail cells, each with four metal walls surrounding the incarcerated. Some jails, however, also feature their own farms, allowing prisoners to inhale fresh air and perform outdoor manual labor. These farms are logically called prison farms. However, their existence leads to the question of why they exist and who benefits from them. Some correctional facilities actually farm food for themselves, improving the inmates’ diets by introducing fresh fruits and vegetables. There is an intrinsic benefit to prisoners leaving their cells and entering the outdoors. Gaining some sense of purpose via physical work, as opposed to sitting in a cell, has rehabilitative benefits- such as exercising muscles and inhaling fresh air. On the other hand, some correctional facilities use this extremely-low-paying farm labor to replace traditional methods of farming, producing food not for the laborers themselves but for paying companies. As such, these correctional facilities that produce food for external companies are fueled by anti-immigration legislation, such as Arizona’s SB 1070, which invites racial profiling, or “reasonable suspicion,” as the prompt for investigating citizen status.[1] Anti-immigration measures such as these reduce the number of undocumented workers in the region, and in turn leave vacancies to be filled by incarcerated prisoners. It can be argued that This method of using prisoners to obtain cheap labor is an iteration of slave labor, since the criminal justice system is already overwhelmingly and disproportionately comprised of people of color and prison farm laborers are not extended full working rights--such as choice to enter the workforce of external companies, the right to join labor unions, or decent wages.

Prison farms do not usually produce food that benefits the laborers themselves; and thus their production usually does not increase the quantity or quality of their own food. One inmate at the Montgomery County Jail in New York claimed that he had lost 90 pounds in less than six months, and a group of inmates at the Schuylkill County Prison in Pennsylvania filed a federal civil rights lawsuit describing their food portions as “not even enough to fill a 5-year-old child.”[2] Many jails lack sufficient amounts of food for distribution. Unfortunately, prison farms rarely help the inmates by serving as additional food, and prisoners’ underpaid labor instead often benefits external companies. In fact, several of the companies that use prison labor supposedly boast healthy, organic eats--including Whole Foods. While this company’s foods may be grown without the use of chemical fertilizers or pesticides, Whole Foods practices exploitation by paying prison laborers extremely low wages. For instance, Whole Foods sold a goat cheese produced by Haystack Mountain Goat Dairy in Longmont, Colorado, and a tilapia from Quixotic Farming: interestingly, these smaller specialty food companies in turn partner with Colorado Correctional Industries, which hires prisoners to milk the Haystack Mountain Goat Dairy goats and farm the Quixotic Farming fish. Whole Foods stopped selling these products once customers expressed discomfort with prison farm-produced foods. Whole Foods claimed that its intent was to promote rehabilitative incarceration involving inmates’ active engagement with nature, but disregarded the exploitative measures that “rehabilitative incarceration,” undertakes.[3]

Prisoner wages vary between $0.04 (in Louisiana) and $1 per hour in most states.[4] These low wages are intended to differentiate this system from slavery. The federal minimum wage, in contrast, is currently set at $7.25. These prisoners therefore generally make a few dollars a week. Rewarding prisoners’ labor with such low wages treats them inhumanely, given that they have less opportunities to oppose exploitation, and treats their work and time as less valuable. Low wages on prison farms is inhumane and a form of exploitation.

Perpetuating this exploitation, the United States Supreme Court ruling in Jones v. North Carolina Prisoners' Labor Union decided that under the First Amendment, inmates do not have a right to join labor unions. This ruling essentially outlaws labor unions as a potential platform from which inmates may attempt to negotiate for higher wages or better working conditions. The low wages are sustained by a lack of representation through labor unions, and their subsequent inability to group together and petition for improvement. [5]

Perhaps most noticeably, there is a visible parallel between prison farms exploiting predominantly black and brown bodies, just as slavery did in America. There is a clear disparity in the criminal justice system as a whole, with racial minorities overwhelmingly and disproportionately represented in comparison to their percentage in the overall U.S. population. Nearly 40% of all incarcerated persons in the United States are black, while they constitute a mere 13% of the overall population. Blacks are incarcerated 5.1 times more than whites, and 1.4 times more than Hispanics. This shows that prison farms are similarly disproportionately exploiting people of color.[6]

Until tangible reforms are made within prison farms--such as fair working rights, acceptable wages, the ability to enter labor unions, some form of access to the food inmates are producing, and ability to use agricultural knowledge and skills when re-entering the workforce--this system is merely an iteration of slavery. According to Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1963), “there is no federally protected right of a state prisoner not to work while imprisoned after conviction.”[7] Not having the right to refuse to work is synonymous with forced labor--though unlike during slavery, this forced labor results in very low pay. This decision only reiterates the Thirteenth Amendment, which explicitly states that, “Neither slavery,” or unpaid labor, “nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The Thirteenth Amendment itself thus declares that incarcerated persons may be legally forced to work “as a punishment for crime whereof the party shall have been duly convicted.”[8] The lack of working rights for agricultural laborers within the prison farm system supports a modern American approach to slavery.

[1] Arizona Legislature, Senate Bill 1070.

[2] Santo, Alysia and Iaboni, Lisa. “What’s in a Prison Meal?” The Marshall Project. July 7, 2015. Accessed November 7, 2017. https://www.themarshallproject.org/2015/07/07/what-s-in-a-prison-meal

[3] Aubrey, Allison. “Whole Foods Says It Will Stop Selling Foods Made with Prison Labor.” National Public Radio. September 30, 2015. Accessed November 7, 2017. https://www.npr.org/sections/thesalt/2015/09/30/444797169/whole-foods-says-it-will-stop-selling-foods-made-by-prisoners

[4] “State and Federal Prison Wage Policies and Sourcing Information.” Prison Policy Initiative. April 10, 2017. Accessed November 7, 2017. https://www.prisonpolicy.org/reports/wage_policies.html

[5] Jones v. North Carolina Prisoners' Labor Union, Inc.,

433 U.S. 119 (1977).

[6] Nellis, Ashley. “The Color of Justice: Racial and Ethnic Disparity in State Prisons.” The Sentencing Project. June 14, 2016. Accessed November 7, 2017. http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/

[7] Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1963).

[8] U.S. Constitution, Thirteenth Amendment.