Factories with fences: an analysis of the Prison Industry Enhancement certification program in historical perspective.

• Author: Misrahi, James J.

1. Introduction II. Private Sector Involvement in Prison Industry in the

   Nineteenth Century

   1. The "Congregate" and "Separate" Systems

   2. Forms of Private Sector Involvement III. Decline of Private Sector: Prison Industry IV. Reemergence of the Private Sector: Prison Industry

      Enhancement (PIE) Certification Program

   1. Provision and Goals of the PIE Program

   2. Models of Private Sector Involvement

5. How the PIE Program Has Overcome the Historical

   Difficulties Associated with PRivate Sector Involvement in

   Prison Industry by Replicating a Real World Working

   Environment

   1. Specific Benefits of the PIE Program to the Main Interest Groups

      Involved in Prison Industry

   2. Convict Laborer

   3. Private Contractor

   4. Free Laborer

   5. Legislators and Prison Administrators

   6. The Public

6. Conclusion

1. INTRODUCTION

   During the past fifteen years the criminal justice system has undergone a significant revolution in which retributive schemes of justice, as opposed to rehabilitative notions, have been emphasised.(1) The outcome of this political swing means that we are spending more money on incarceration and are building prisons at a faster rate than at any previous time in this nation's history.(2) While great energy has been spent putting people behind bars, very little thought has been given to what to do with them once they are there. While the idea of work as a tool of reform has always been a part of the correctional mainstream, the idea of introducing private enterprise into prison industries is a novel idea that has been gaining some currency.(3) One reason for the resurgence of interest in the private sector is the inherent inefficiency of traditional state prison industry in an era of fiscal strigency.(4) Therefore, the possibility of making prisons less expensive, if not profitable, is certainly tantalizing to policy makers. Another reason is the realization that employment in traditional state industries has failed as a method for reforming the offender.(5) Many states have therefore turned to the private sector in search of solutions to their prison problems.(6)

   As part of an experimental program, Congress authorized the Prison Industry Enhancement (PIE) program through the Justice System Improvement Act of 1979.(7) The PIE program brings the private sector into prison industry by exempting certified correctional agencies from legislative restrictions on the transportation and sale of prison made goods in interstate commerce provided that prisoners are paid minimum wage and certain other criteria are met.(8) The program additionally authorizes deductions of up to eighty percent of gross wages for taxes, room and board, family support, and victim compensation.(9) This Note explains how the PIE program has overcome the historical problems of convict exploitation and free labor competition associated with private sector involvement in prison industry. In addition, this Note advocates expanding the PIE program and recommends applying its principles as a model to states wishing to reform their correctional institutions.(10) This Note is not, however, about privatizing prisons, a concept that envisions turning an entire prison facility or prison system over to the custody and control of the private sector.(11) While persuasive arguments can be made in support of privatization, such a discussion is beyond the scope of this Note. This Note is about fundamentally changing the way work is performed in prisons by allowing the private sector to employ inmates at minimum wage and, ultimately, to market and sell prison-made goods in the Stream of commerce. This Note posits that such an approach would provide the most benefit to the public, the taxpayers, the prison administrators, and ultimately the prisoners themselves.

2. PRIVATE SECTOR INVOLVEMENT IN PRISON INDUSTRY IN THE NINETEENTH CENTURY

   1. The "Congregate" and "Separate" Systems

      The history of American prisons is also the history of labor in prisons.(12) Inmate idleness was not simply a concomitant problem of incarceration but rather a cause of deviant behavior.(13) Work was therefore considered necessary to instill discipline in the inmate and to Set him onto the path of righteousness through an institutional routine.(14) Prisons were organized around the concept of work in order to reform the inmate.(15) In the 1820s, two rival penitentiary systems arose--the "congregate" system, first established by New York officials at Auburn state prison between 1819 and 1823, and the "separate" system, established by Pennsylvania officials between 1826 and 1829.(16) Both systems were organized around the concepts of separation of the prisoner from other inmates, obedience to prison authorities, and, most importantly, physical labor.(17) At first glance, the differences between the congregate and separate systems may seem slight; communal labor with separation at night versus labor in complete isolation.(18) These differences, however, would greatly impact the ability to introduce the factors of production into the prison setting.

      A system of complete isolation, such as the separate system, places great constraints on the ability to introduce industrial techniques into the prison setting because labor is necessarily limited to handicraft of an artisan nature. (19) To prison officials this was acceptable since the purpose of work was viewed as therapeutic, not productive.(20) The silent worker of the craft workshop therefore formed the model for the ideal prisoner.(21) This conception, however, for a number of reasons grew increasingly anachronistic in an age of ever growing industrialization. First, from a practical point of view, a system of complete isolation would be difficult to maintain in times of rapid prison growth.(22) Second, from an economical point of view, this system denied the market what could otherwise have been a productive labor force.(23) Finally, from a penological point of view, the system did not serve its therapeutic function because "the uneconomic nature of the work [the prisoners] were forced to do[] diseducated the inmates, thus reducing their original working capacities."(24) For work to reform the prisoner it had to be productive work; in other words, it had to be industrial work organized around a factory system.(25)

      The congregate system, in comparison, established the prerequisites necessary for the introduction of private enterprise into the penitentiary setting.(26) Reform of the prisoner depended on training in the latest means of factory production. Penological goals, therefore, were readily adaptable to serve the dominant economic industrial system.(27) The idea of furthering both financial and reformist goals by running a self-supporting prison greatly appealed to state legislators and policy makers.(28) Thus, even though critics and supporters continued to argue about the benefits and drawbacks of both the congregate and the separate systems,(29) the congregate form of labor had nonetheless become the dominant model for the penitentiary system by mid-century.(30)

   2. Forms of Private Sector Involvement

      Private sector involvement in prison industry took on different forms depending on both economic and attitudinal distinctions in different regions of the country. In the North, the contract system prevailed as the dominant model for involvement with the private sector.(31) The contract was a legal agreement between the private sector and prison officials for the labor of prison inmates at a fixed price for work performed within the prison.(32) The work performed was usually factory work such as hatting, shoemaking, or weaving.(33) A variation of this system known as the piece-price system also existed, where the contractor paid a fixed price per completed item instead of a daily wage.(34)

      In the South, the lease system prevailed as a model for the private sector.(35) Under the lease system, unlike under the contract system, most of the work was performed outside the prison, usually on railroads, in mines, or on agricultural projects.(36) The main distinguishing factor between the contract and lease systems, however, was that under the lease system prison officials forfeited complete control over the inmate to the private contractor.(37)

      A separate model known as the public account or state use system also existed that, unlike the contract or lease systems, allowed the prison to maintain complete control over its inmates.(38) In addition, under this system the state essentially took the place of the private entrepreneur by establishing its own labor standards and producing goods later absorbed by the state rather than by the free market.(39) Public account proved to be the least economically efficient of the prison industry models and, consequently, few states adopted it.(40) One reason for its rejection was that most states were unwilling to make the major investment in the physical plant required for successful prison industry. Second, most wardens were simply incapable of performing the role of private entrepreneur.(41) The few states that did experiment with the public account system in the nineteenth century quickly reverted back to either the contract or lease system of prison employment.(42)

3. DECLINE OF PRIVATE SECTOR INVOLVEMENT IN PRISON INDUSTRY

   The problems associated with private sector involvement in prison industry can be traced to the problems associated with early industrial capitalism. Paradoxically, treatment of so-called free workers was not very different from that of inmate workers.(43) The inmate, however, as a pariah of society, had fewer protections than a free worker.(44) While a free worker could refuse to work, an inmate's refusal to work constituted a disciplinary infraction.(45) Furthermore, the contractor's need to turn a profit subordinated any pretense of reforming the criminal through work.(46)

   In the South, problems of inmate exploitation were exacerbated by a pre-existing heritage of slave practices.(47)...