The 'Abolition Amendment' won't End Prison Labor | Opinion

With only days left in the 116th Congress, the "Abolition Amendment" has appeared. It's a bicameral effort to remove the words "except as a punishment for crime whereof the party shall have been duly convicted" from the 13th Amendment to the United States Constitution.

Removing this exception to the 13th Amendment's ban on slavery is a necessary step to ensure that the United States isn't the last country to condone slavery in any form. While no one's opposed the bill, some have objected that it will collapse the entire prison labor complex. Such arguments, however, are uninformed; the proposed modification of the Constitution will have little effect on prison labor.

Modern prison labor doesn't draw its authority directly from the 13th Amendment. A whole web of statutes and regulations govern the 900,000-person workforce that isn't free to leave the workplace. The IRS says inmate laborers are not employees. So does Section 3 of the Occupational Safety and Health Act; it does not include prison laborers in its definition of "employee." So do the Toxic Sub­stances Control Act and section 312 of the Clean Air Act Amendments of 1977. Many federal and state statutes insulate the prison-industrial complex. It will survive the death of the 13th Amendment loophole.

Prison labor, which arose from the ashes of convict leasing, is widely considered exploitative and has been compared to slavery. Inmates are paid an average of 86 cents per hour, according to a study conducted by the Prison Policy Initiative.

During the Great Depression, Congress passed two laws, the Hawes-Cooper Act and the Ashurst-Sumners Act, to prevent prison-made goods from entering interstate commerce and to dampen the labor market within prisons. In 1979, Congress passed the Justice Systems Improvement Act—often known as Percy Amendment for Senator Charles Percy, the Republican from Illinois who championed it after a riot at the Pontiac Correctional Center left three guards dead—to open the commerce flow to inmate-manufactured items. Percy envisioned work as the solution to prison violence and recidivism. Out of that, the Prison Industry Enhancement program—the public-private partnership allowing companies to hire prisoners—was born. Before that, hiring prisoners was allowed by Executive Order alone.

Contracting for prison labor wasn't supposed to be as exploitative as it's become. The Percy Amendment requires that inmates be paid the prevailing wage, with no more than 80 percent being deducted for room, board and victims' funds. Local labor unions had to give their blessing to any prison industry.

The fact that inmate laborers make pennies per hour is the result of state deductions from their wages. The infrastructure to pay people fairly already exists. It just needs to be tweaked and enforced.

Marion Correctional Institution
Guard towers look over the prison courtyard at Marion Correctional Institution on April 27, 2020. MEGAN JELINGER / AFP/Getty

We have to decide what we want out of prison labor. Private companies that contract for prison workers make $500 billion each year. But only 63,000 inmate workers—about 7 percent—are employed by private companies in so-called prison industries. The remaining 93 percent work in-house, meaning they're involved in some maintenance of prison or daily life: custodial, food service, laundry. The facilities can't operate without them.

These jobs free inmates from their cells and give them a sense of purpose and responsibility. For all the claims of forced labor, in federal custody alone there are 25,000 inmates waiting to get work assignments. That doesn't include the men and women in state and local facilities that constitute 90 percent of the entire incarcerated population. They line up for a chance at this work, too.

The longer one works in prison, the more likely he or she is to stay out after release. I don't think this is because prison labor is particularly skill-building but because it causes a shift in self-perception. For the first time, prison laborers have an identity that isn't problematic.

In the past two national elections, Colorado, Nebraska and Utah removed language similar to that of the 13th Amendment's exception clause from their states' constitutions through ballot measures put directly to voters. While the changes are too new in Nebraska and Utah—reliably red states—to know their effect, prison labor still pays the same in Colorado as before. In fact, so little has changed that inmates have sued, saying their practically nonexistent wages are illegal.

Of course, other inmates can seek redress in the courts as has happened in Colorado. Workers can challenge the constitutionality of the laws that enable these working conditions with those fourteen words removed from the 13th Amendment, which otherwise speaks powerfully to the freedom this country aspires to.

If these inmate plaintiffs were to prevail, they may topple the entire prison labor system. As someone who worked in it, I know that wouldn't ultimately benefit the ostensible goal of rehabilitation. In Colorado alone, the back wages for inmates dating back to 2018 when the state constitution was amended could total as much as $1 billion. Prison wages could make our system of mass incarceration cost far more than the $80 billion we spend on it now.

But that will take years to happen and, hopefully, Congress can intervene with meaningful reform before then.

Meanwhile, the 13th Amendment's loophole is a blight and its remedy is here now. The economy of the prison won't collapse without it—at least not yet. There's absolutely no reason not to amend the Constitution this way immediately. Quite frankly, it's the only way to close out 2020.

Chandra Bozelko writes a nationally syndicated column for Creators Syndicate. You can follow her on Twitter at @aprisondiary.

The views expressed in this article are the writer's own.