Public Profiteering of Prison Labor

Abstract

The demand for prison labor reform has echoed across generations of prison organizing. Despite the exhaustive attempts of incarcerated people to secure workplace protections for coerced and un(der)compensated prison labor, federal courts have almost universally refused to recognize incarcerated workers as “employees” deserving of rights. Courts have drawn a line between private and public interests and have determined that where an incarcerated person works for a public prison or agency, there is no cognizable employment relationship. This is so, they reason, because governments lack a pecuniary interest in prison labor and any profits harvested by the state can be absolved as a public good.

This Article—the first to focus on the public profiteering of prison labor—examines these claims and explains why they are wrong. An examination of history reveals that governments deliberately expanded carceral systems to re-subjugate newly-emancipated Black communities for the purpose of growing the state’s profits. An understanding of modern prison labor is incomplete without recognizing this originating motivation. And governments remain uniquely positioned to benefit from prison labor in important ways that evade scrutiny. Today’s understanding of prison labor often focuses on two categories: labor that operates the prison (“prison maintenance”), and labor that produces goods for sale (“prison industries”). But buried in this two-part framework is another overarching category that merits recognition: the reliance on incarcerated people to perform public works and government services (what I call “carceral public works”). This is an important form of exploitation to name—it is a reincarnation of the convict leasing and chain gangs that defined the post-Emancipation era, and it carries dangerous incentives for profiteering governments. As state actors have already proven, governments will remain galvanized to resist decarceral reforms so long as they can continue exploiting the labor they hold captive in public prisons.

Keywords: civil rights, prisoners' rights, economic justice, racial justice