Is prison labor constitutional? Is it ethical? | The Excerpt
On a special episode (first released on January 9, 2025) of The Excerpt podcast: The practice of profiting from prison labor, both inside prisons and outside for private industries is complex and fraught. Last month in Alabama, a Hyundai supplier ended its work release program following intense pressure to do so. But, in California, Proposition 6, which would have banned involuntary prison labor, was defeated last November. Are laws that allow private industry as well as state governments to profit from prison labor constitutional? Darrick Hamilton, the Henry Cohen Professor of Economics and Urban Policy at The New School, and Chief Economist of the AFL-CIO joins The Excerpt to explain the way some of these programs work and to share what both proponents and detractors of the practice say about them.
Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.
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Dana Taylor:
Hello and welcome to The Excerpt. I'm Dana Taylor. Today is Thursday, January 9th, 2025, and this is a special episode of The Excerpt.
The history of incarceration in America is complex, making the practice of profiting from prison labor, both inside of prisons and outside for private industries even more fraught. Last month in Alabama, a Hyundai supplier ended its work release program following intense pressure to do so. But in California, Proposition 6, which would've banned involuntary prison labor, was defeated last November. Are laws that allow private industry as well as state governments to profit from prison labor Constitutional?
Here to help us understand the way some of these programs work as well as what both proponents and detractors of the practice say about them is Darrick Hamilton, the Henry Cohen professor of Economics and Urban Policy at The New School and Chief Economist at the AFL-CIO. Thanks for joining me, Darrick.
Darrick Hamilton:
Thank you for having me. I'm looking forward to our conversation.
Dana Taylor:
First, can you break down prison labor practices that occur strictly inside of prisons? Speaking broadly, how does prison labor work?
Darrick Hamilton:
Essentially, those individuals that are incarcerated have access to work, but not in the same terms as somebody who's not incarcerated. In other words, they're not governed by the same labor laws, almost virtually no labor laws that those that aren't incarcerated are governed by. And that obviously leads to questions of power.
Dana Taylor:
How has using incarcerated laborers benefited private industry? Is this story largely about pay versus profit?
Darrick Hamilton:
In any labor market, there are issues of power. Those that are capital or producers, there often is a desire to extract production at low prices, essentially low wages. So if you extrapolate from prison laborers and think about private industry, that obviously becomes a source of even potentially lower wages then that of a person who's not incarcerated, who does have protections of labor laws, and also the ability to collectively bargain.
Dana Taylor:
There's clearly an upside to prison labor and work release programs for prisons and private industries. Some have said, "Look, prisoners have a debt to repay to society. They're perhaps learning a new skill, and for some, this could even lead to early parole." Are there benefits here for the incarcerated?
Darrick Hamilton:
I don't want to emphasize the problem as work itself. A fundamental goal and desire of humanity, I believe, is to work, to engage in productive environments that are, now here's the key point, that aren't exploitive and extractive. So the question isn't work per se, but power. So if we can come up with structures and systems where it is not exploitive, it is not so extractive and it is not inhumane or the issue of coercion, if there's some ability to structure prison workers or incarcerated individuals to have access to work, I'm all for it. But what becomes a problem is the issue of agency, the issue of power, having the capacities to say no. When somebody's incarcerated, it grossly limits their ability to really, in a true sense of the word, have agency with regards to whether they work or not, and what conditions in which they work.
Dana Taylor:
Doesn't the 13th amendment which abolished slavery and involuntary servitude still make the practice of prison labor legal? And can we talk about the constitutionality of prison labor without discussing the history of convict leasing?
Darrick Hamilton:
Just because something is legal doesn't make it right. So a flaw in the 13th Amendment from my purview was that caveat that allowed for involuntary servitude for those that were incarcerated and convicted of a crime. That was a flaw. If we believe that as a human right that people should not be in servitude, then that should extend to those that have been convicted of a crime as well.
Dana Taylor:
Is there evidence that low or unpaid prison work release programs incentivize the exploitation of incarcerated people?
Darrick Hamilton:
That incentive always remains for those that are interested with a goal of profit. Well, how do you generate profit? Production at low cost. And if there's capacity to find workers at low cost, often, profit-seeking entities will seek them out. And when we have structures and systems that allow for the state to even profit in such a way from this type of exploitation, it becomes particularly pernicious and immoral.
And again, I do want to emphasize the issue isn't work per se. I'm sure that many individuals that are incarcerated enjoy working, want to work. Again, I believe that that is a fundamental attribute of humanity. Leisure is as well, but we want to produce. From the day we're born... If you imagine young children right now, we just got through the holiday season, and popular gifts are trucks. Lego. People like to build. They like to construct things. So I want to make clear that the problem isn't work per se. We would want to set up those that are incarcerated to have access to not being idle, to be productive, to even be able to earn a decent return, to develop skills.
Dana Taylor:
How are work release programs regulated? Can you juxtapose the work release programs for prison laborers and the rest of us?
Darrick Hamilton:
Juxtaposing with the rest of us, again, the key difference is collective bargaining. And it also varies state to state. Some states are more or less progressive in how they set up the structures by which these exchanges take place, and that's a key point that we should all keep in mind. These markets, these so-called transactions, they're not natural. They are governed by a political process. States have capacities to ensure that these exchanges, these engagements aren't exploitive and extractive.
Dana Taylor:
What do workers who work alongside prisoners have to say about it?
Darrick Hamilton:
There's also that vulnerability of those people that aren't working in a competitive sense if they have to compete with another group of workers who frankly don't have agency and end up accepting the terms, the wages, the conditions in ways that aren't the same as those people that aren't incarcerated. That also has a tendency to drive down wages and conditions.
Again, the solution isn't to prohibit prisoners or those people that are incarcerated from being able to work. The solution lies in a structure or system, a collective bargaining, a base set of conditions by which employers aren't allowed to go below. And that often occurs in one of two ways. Either there's some state regulations to ensure some base conditions for humanity, for just agency in the workplace or through collective bargaining, where workers themselves can not as individuals, because as individuals, they don't stand a chance. But with solidarity, with unions, be able to structure and exchange a work environment that not only benefits themselves, but lead to more righteous conditions for all of society.
Dana Taylor:
For a person with a felony record, finding employment is challenging. Are formerly incarcerated people with prison work experience more likely to have an advantage here after they are released?
Darrick Hamilton:
You've hit on an issue that's problematic writ large. There's previous studies that have demonstrated that when it comes to race, the intersections of incarceration and race are such that when a Black person signals no prior incarceration, that they have harder time receiving a job offer than a white person that was reported to be formerly incarcerated. If you add the intersections of both race and incarceration, a Black person who signaled prior incarceration, they were three times less likely to get a callback than a Black person that didn't. And that's true for white people as well. Not quite three times, but twice as likely not to get a callback. So we have a problem in our society, so it's really pernicious when you look at an intersection of both race and formally incarcerated.
I believe that there have been some states that have been attempting to redress this issue. There's initiatives like Ban The Box. In other words, a box on a job application that asks about incarceration status. These are some things that we can do.
I'll give a metaphor and an example to try to drive the point. When we think about airport security, sometimes we send people through the airport hired by the government to test and see how well our airport security stands up to someone trying to smuggle a weapon or something on a plane. When it comes to employment, if we're interested in ridding our labor markets of discrimination against formerly incarcerated individuals and discrimination against race, why don't we proactively go out and detect? Why don't we send actors or correspondence tests and find and see if employers are living up to the labor laws? To me, that would be one of the real good ways to get rid of not only discrimination, but forge employment opportunity for those people that have been formerly incarcerated, particularly those that are stigmatized further by a racial identity.
Dana Taylor:
Do work release programs reflect a system that prioritizes profit over rehabilitation, or is the answer more nuanced?
Darrick Hamilton:
The answer is certainly nuanced. It is important to realize anytime we're thinking about profit, rehabilitation, labor markets in general, there are three things to consider from a broad perspective, politics, our economy, and then here's the other element that we negate, whether we deem an individual based on the group by which they belong as deserving or undeserving. Our society stigmatizes. We stigmatize on the grounds of many dimensions, and clearly those individuals convicted of a crime are stigmatized. So when we think about larger labor markets, they're vulnerable. They're vulnerable to exploitive structures.
Now, we can change that. We can have a more enlightened, righteous society. And we should also know that the stigma and the environments in which they face, the labor markets in which they face aren't limited to them. They impact our larger labor market. They set a bottom that also impacts workers who are not incarcerated, that drives their wages low as well.
Dana Taylor:
We've talked about private industries and prisons, how they've benefited. We've talked about concerns and benefits for the incarcerated. What about society as a whole? What do these programs say about us?
Darrick Hamilton:
Do we believe in the fundamental human rights? Do we believe in human rights, period? Of course, if somebody commits a heinous act, there's accountability. Of course, we need to protect society, but we certainly should not dehumanize individuals, in my view. I think when we open that Pandora's box of allowing for dehumanization... And appealing to the base in us. For those individuals that might not see the humanity in somebody, that's incarcerated, it leaves us vulnerable not only in the scenario of prison labor markets, but it leaves us vulnerable to other labor markets. There is an ethos in society that it can't be so easily isolated. The manner in which we engage throughout society, if it's grounded by some principles, some morality, if that's our moral compass, we all will be better off in righteousness.
Dana Taylor:
Darrick, thank you for being on The Excerpt.
Darrick Hamilton:
Thank you. Dana, I wish you a marvelous 2025.
Dana Taylor:
Thanks to our senior producers, Shannon Rae Green and Kaely Monahan for their production assistant. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts@usatoday.com. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.