Captive Workers

Scratch the surface of almost any social issue and the Constitution appears. By Luke Pickrell

Jail Plan, Howard W. Marshall, 1980

Wildfires in California have renewed discussions about prison labor and the 13th Amendment to the Constitution. “Inmates Can Make Up Nearly A Third Of Those Fighting California Fires,” reads a Forbes headline. “For Just Dollars a Day, Inmates Fight California’s Fires,” explains the New York Times. From the Marshall Project: “Incarcerated Firefighters Do Risky, Low-Pay Work. Many Say It’s The Best Job Behind Bars.”

Most state constitutions, including California’s, bar involuntary servitude but make an exception for prisoners (Colorado, Utah, and Nebraska are some of the handful of states that have amended their constitutions to remove exceptions for involuntary servitude). This exception allows states to use incarcerated individuals for labor. These workers can’t unionize, are not covered by minimum wage laws or workers’ compensation, and their ability to recover damages in court is limited. The inherently coercive conditions of incarceration cast doubt on the claim that prison labor is always voluntary.

In California, prisoners are often paid less than $1 an hour for labor such as fighting fires, cleaning cells, and landscaping at cemeteries. Depending on the skill level and the task assigned, incarcerated firefighters either receive $0.16 to $0.74 an hour or a maximum day rate of $5.80 to $10.24.  Forbes explains that most lunches “consist of a simple sandwich — two pieces of white bread with a few slices of bologna — plus an apple. [Firefighters’] daily food budget of approximately $4 per day is hardly enough to sustain them for their high volume of manual labor.” In California, the discrepancy between the pay of salaried and incarcerated firefighters reduces firefighting costs by $100 million a year. While firefighting can be a coveted job because of its various “perks” and comparatively high pay, the ACLU argues that the program “preys on the inmates' desires for freedom and dreams of a better life for cheap, dangerous labor.” Prison workers are captive workers. Furthermore, one can assert that “firefighting inmates in California are but one example of a larger systemic injustice surrounding the treatment of prisoners.”

The vast majority of state constitutions reflect the Federal Constitution. Each state has a supreme court, a bicameral state legislature (Nebraska is the only exception), and a powerful governor with some kind of veto. Prison labor is no exception to this quasi-rule. The 13th Amendment bans slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” Incarcerated labor in every state finds legal justification in the Constitution.

Last November, California voters rejected a measure that would have banned forced prison labor. This presents one problem: prison labor is at least somewhat popular among people who can vote. But a larger problem looms. The Federal Constitution sets a powerful precedent for state constitutions, and when it comes to changing the Federal Constitution, majority opinion doesn’t really matter. Thanks to Article V, our Constitution is the hardest in the world to amend, meaning popular opinion can’t be translated into political change at the national level. Article V also stipulates that even if legal constitutional change was possible, voting must take place not based on one person, one vote, but one state, one vote.

What people think about the laws is one thing. The fact that those laws can’t be changed regardless of what people think is another.

Faced with an unusable amendment clause, many people argue for organizing at the state or local level. If the 13th Amendment can’t be changed, maybe state constitutions can. But as Lisa Miller argues, the rules in the Constitution, particularly federalism, negatively impact small-scale organizing. A vicious circle ensues. People try to organize at the state or local level to escape the Federal Constitution, but the Constitution negatively impacts people’s ability to organize at the state or local level.

At the end of the day, there’s simply no way to dip, duck, or dive around the Federal Constitution and who makes the decision at the national level. All signs point back to the Constitution. But Article V makes any constitutional change, let alone any democratic change, impossible.

As Daniel Lazare writes, “That leaves only one way out: an end-run around the Constitution in the form of a constituent assembly in which ‘we the people’ revamp the political structure not according to the complicated rules outlined in Article V, but based on popular sovereignty, which is to say the right of the people to act on their own authority in order to improve their condition.”