Prison Labor: Modern-Day Slavery under the Thirteenth Amendment


As numerous wildfires tore across California, approximately 1,500 inmates worked alongside professional firefighting crews to quell the flames. Typically, professional firefighters earn around $74,000 a year, excluding benefits. Prisoners working as firefighters earn about $1.45 a day for their work, roughly thirteen percent of the hourly minimum wage in California. [1] The discrepancy between the pay of salaried and incarcerated firefighters reduces firefighting costs by $100 million dollars a year for the state, and incarcerated firefighters, who must volunteer to participate, are compensated with a two-day reduction of their sentence for every day of good behavior. [2] Many, in fact, tout the program for its volunteer requirement, its purported aim of rehabilitation, and its incentives. Some, like Bill Sessa, the state correction spokesman, go as far as lauding the program for its “lavish pay by prison standards.” [3]

It is firstly important to consider where the prison labor system finds its legal justification: an exclusionary clause of the Thirteenth Amendment. The Thirteenth Amendment abolished slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” As a result of the exclusionary clause, prisoners do not enjoy the legal protections that all other workers have: "They’re not allowed to unionize. They’re not covered by minimum wage laws, and the paltry wages they do earn can be seized by the prison...they’re not covered by workers’ compensation, and their ability to recover damages in court is severely limited. All of these factors combine to make prisoners a uniquely vulnerable workforce," as David Fathi, Director of the National Prison Project at ACLU notes. [4] Moreover, prisoners can be, and often are, required to work for little to no compensation, and can face punishment upon their refusal. In some states, like Texas, there is no inmate pay for labor, and even within states that compensate inmates, their pay is mostly spent on phone calls to family members or toiletries. [5] The low pay, in conjunction with the aforementioned costs, leaves prisoners with nothing saved for their future after release. Furthermore, once released, people with felony convictions are often barred from benefit programs (e.g. welfare, food stamps), compounding the effects of numerous other obstacles to finding steady employment.

As such, while the inmate-firefighting program makes considerable progress in offering inmates an opportunity to both positively impact society and cut time off their sentences, especially within the broader context of the prison-industrial complex, the program is inherently exploitative and cannot be considered truly voluntary. Given the abundance of incentives offered to participants (e.g. time off sentences, small amounts of money, camaraderie, etc.), one would be remiss not to note how irresistible the program is to the incarcerated, many of whom want to be released as quickly as possible. So, while inmates must make a decision to volunteer for the program, thus making it voluntary insofar as there is a choice, the “rewards” are too valuable for most to not seriously consider participation. The program preys on the inmates' desires for freedom and dreams of a better life for cheap, dangerous labor. The exploitative nature of this exchange also becomes clear when one takes into account that “prison is an inherently coercive environment; there’s very little that is truly voluntary,” as David Fathi recognizes. [6]

Nonetheless, many people -- despite justification within the Thirteenth Amendment exclusionary clause, along with the coercive and exploitative nature of this system -- do not believe the prison-labor system can be considered slavery. Philosopher Tommie Shelby of Harvard University, in a colloquium discussing Angela Davis’s efforts on prison abolition and the prison-industrial complex, “acknowledged that, although ‘prison laborers are denied the freedom to choose their occupations’ and places of employment, they are able to maintain specific freedoms, such as freedom of religion and freedom from torture or unlawful punishment and therefore cannot be equated to slaves.” [7]

Shelby rightly raises the varying degrees of injustice suffered by the oppressed in the prison-industrial complex in comparison to those suffered in chattel slavery, but both instances ought to be considered slavery nonetheless. Injustices imposed under a specific form of slavery (e.g. chattel slavery) are not, per se, necessary conditions for slavery in general -- just as a difference in quality does not elicit an entirely different concept, differences between the prison-industrial complex and chattel slavery are merely differentiate of two groups in similar conditions. This parallels the way that pro-slavery Southerners were not justified in their distinction between the “benevolent” treatment of slaves by American slave-owners and the “brutal conduct” toward slaves by their British counterparts. While conditions of slavery under the prison-industrial complex are “better” than chattel slavery, there will never be a moral justification for any form of slavery, or anything remotely resembling it, no matter how well-masked these harrowing conditions are under the guise of retributivism or utilitarianism.

Shelby and I converge, however, on the notion of incarceration prevention, that there must be a “remedying of the myriad injustices that often lead to the imprisonment of the oppressed.” [8] For instance, if the program truly adopts rehabilitative aims, then it would make practical sense for inmate firefighters to transfer their skills and experiences into jobs once they are released from prison. Yet, strict licensing laws and blanket bans prevent qualified inmates from going on to find stable positions as firefighters. For example, California state law, regarding Emergency Medical Services, bars anyone that “has been convicted of two (2) or more felonies” from acquiring an EMT certificate, which is a requirement for becoming a firefighter. [9] Although incarcerated firefighters would perform the same duties as firefighters after prison as they had while incarcerated, many California cities, such as Bakersfield, disqualify any applicants who have been convicted of a felony from the process altogether. [10] Considering recidivism rates are much higher when formerly-incarcerated individuals are unable to find steady employment, barring inmates from the opportunity to become firefighters upon their release seems to run contrary to the purported rehabilitative aims of the program. Well-qualified applicants are denied a remunerative, socially-respectable occupation due to their status as a former convict. Having long paid their “debts to society,” they are hamstrung by endless restrictions that conceive of them as two-dimensional criminals -- incapable of progress in any way, shape, or form. Society offers them no real chance of redemption.

Despite the exploitation, many prison jobs, especially ones like the inmate-firefighting program in California, are much sought-after by prisoners. They provide an escape from the monotony of prison life as well as paltry earnings. But this doesn’t provide sufficient moral justification for everything the prison labor system does wrong or justification for the system in general. The firefighting inmates in California are but one example of a larger systemic injustice surrounding the treatment of prisoners.

Considering that recidivism rates are much lower when inmates successfully reintegrate back into their communities, we ought to make genuinely progressive, rehabilitative policies and laws that directly contribute to their integration. For example, paying prisoners a real wage would increase the likelihood that they can pay for food, housing, clothing, healthcare, supervision fees, transportation, etc. Prison workers should be afforded a real wage and the legal protections all workers enjoy.

[1] "California Department of Corrections and Rehabilitation Adult Institutions, Programs, and Parole Operations Manual." January 1, 2018, https://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM 2018/2018 DOM.pdf.

[2] Lowe, Jaime. "The Incarcerated Women Who Fight California's Wildfires." The New York Times. August 31, 2017, https://www.nytimes.com/2017/08/31/magazine/the-incarcerated-women-who-fight-californias-wildfires.html.

[3] Wotus, Matt, and Monte Plott. "California Inmates on Wildfire Front Lines." CNN. October 18, 2017, https://www.cnn.com/2017/10/13/us/california-fires-inmate-firefighters/index.html.

[4] Fathi, David. "Prisoners Are Getting Paid $1.45 a Day to Fight the California Wildfires." American Civil Liberties Union. November 15, 2018, https://www.aclu.org/blog/prisoners-rights/prisoners-are-getting-paid-145-day-fight-california-wildfires.

[5] Sawyer, Wendy. "How Much Do Incarcerated People Earn in Each State?" States of Incarceration: The Global Context 2016 | Prison Policy Initiative. https://www.prisonpolicy.org/blog/2017/04/10/wages/.

[6] Fathi, David. "Prisoners Are Getting Paid $1.45 a Day to Fight the California Wildfires." American Civil Liberties Union. November 15, 2018, https://www.aclu.org/blog/prisoners-rights/prisoners-are-getting-paid-145-day-fight-california-wildfires.

[7] Windley, Maurice. "Scholar Debates Philosophy of Proposed Prison Abolition." The Justice. October 10, 2017, https://www.thejustice.org/article/2017/10/scholar-debates-philosophy-of-proposed-prison-abolition.

[8] Ibid.

[9] California Code of Regulations Title 22. Social Security Division 9. Prehospital Emergency Medical Services Chapter 6. Process for EMT and Advanced EMT Disciplinary Action. https://emsa.ca.gov/wp-content/uploads/sites/71/2018/10/EMSA_Chapter_6.0_Process-for-EMT-and-A-EMT-Disciplinary-Action.pdf.

[10] Zaveri, Mihir. "As Inmates, They Fight California's Fires. As Ex-Convicts, Their Firefighting Prospects Wilt." The New York Times. November 15, 2018, https://www.nytimes.com/2018/11/15/us/california-paying-inmates-fight-fires.html.

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