Prison-Labor Bans Are About Unions More Than ‘Slavery’

A movement against prison labor seems to be gaining ground. The 13th Amendment outlawed slavery and involuntary servitude, “except as a punishment for crime whereof the party shall have been duly convicted.” The constitutions of 19 states have similar language. On Tuesday voters in five of them—Alabama, Louisiana, Oregon, Tennessee and Vermont—will decide whether to rewrite their charters to abolish that exception.

Colorado voters led the way by passing a similar ballot measure in 2018; Nebraska and Utah followed in 2020. So far these measures have had no effect on the state’s prison-labor programs, although litigation is pending against Colorado’s. If it succeeds, the state may have to pay prisoners minimum wage if they work at all.

But voters should pay attention to who would benefit from this alleged reform to prison labor. It isn’t the inmates. According to a report from the American Civil Liberties Union, two-thirds of state and federal inmates work and would descend into idleness if courts hold that the new state constitutions require them to be paid. The California Legislature refused to strike the language from its constitution earlier this year because lawmakers feared that doing so would eventually require the state to pay 65,000 inmates the minimum wage.

Some 80% of prison labor isn’t performed under contract to private companies; it’s maintenance work for the facilities themselves. If prisons have to pay minimum wage, they will hire more workers who aren’t incarcerated—employees who can be organized into unions. The U.S. Supreme Court has held that inmates can form unions but wardens have far more discretion to bust them than do employers on the outside.

Prison labor has been controversial since President

Franklin D. Roosevelt

formalized it in 1934, but not always because of the 13th Amendment. Unions took issue with what they viewed as unfair low-wage competition for their members and prospective members. The National Center for Policy Analysis reports that organized labor has closed down prison industries in Arizona, Illinois, Ohio and Texas.

Historically, sympathy for incarcerated workers has heightened when the community around a prison started losing money. In 1879 in Galveston, Texas, townspeople showed little concern for prisoners’s well-being until the prison stopped purchasing goods from local suppliers; then concerns surfaced that inmates were being abused. In 1891 union miners freed the incarcerated laborers working for the Knoxville Iron Co.—only to force the mine to rehire union members.

It may seem unfair to give jobs to prisoners when law-abiding citizens are out of work, but this argument is less compelling at a time like now, when employers are desperate to hire.

The constitutional language that seems to authorize slavery as punishment is embarrassing, but prisoners aren’t really enslaved—they’re not treated as legal property of the state or anyone else. And work experience is a crucial element to rehabilitation. Utah and Colorado both employ incarcerated inmates in work assignments outside prison to ease tight labor markets. My humble job in the prison kitchen helped prepare me for life on the outside.

Ms. Bozelko is a columnist for the National Memo and author of the blog Prison Diaries.