MODERN PRISON LABOR: A REEMERGENCE OF CONVICT LEASING UNDER THE GUISE OF REHABILITATION AND PRIVATE ENTERPRISES.

• Author: Whitehouse, Mary Rose

TABLE OF CONTENTS INTRODUCTION I. Prison Labor-Produced Goods Brought to the Fore A. Common Fictions Surrounding Prison Labor Programs II. A History of American Prison Labor A. "Black Codes" in Post-Civil War America B. Convict Leasing Fills the Void Left By Slavery C. Chain Gangs: A New Form of Cheap Prison Labor III. The Lay of the Land: State Prison Labor Systems and the Fair Labor Standards Act A. Relevant Federal Statutes B. Three Categories of State Prison Labor Systems 1. Jobs That Directly Facilitate Prison Operations 2. Jobs That Do Not Facilitate Prison Operations i. State Run Prisons ii. Privately Run Prisons C. Judicial Construction of the FLSA 1. Statutory Construction and Legislative Intent D. The Evolution of the Economic Reality Test 1. Pre and Post Bonnette Factors IV. Proposal for Change: A Modified Version of the Economic Reality Test and an Amendment to the Constitution A. The Modified Test in Application CONCLUSION INTRODUCTION

"It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." (2)

The Thirteenth Amendment to the United States Constitution states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (3) Although the United States took the first charge in the battle towards the abolishment of slavery with the Thirteenth Amendment, the country simultaneously formed an ideological attachment to the notion of unpaid, involuntary servitude as just punishment for crime.

It has been over 150 years since the Thirteenth Amendment was ratified, (4) and yet the validity and efficacy of the concept of unpaid servitude has gone largely unexamined by mainstream thought. Many of the arguments concerning the issue of prison labor and fair wages are predicated upon the infallibility of the Thirteenth Amendment--that unpaid servitude is an appropriate punishment for crime and is sufficiently rehabilitative for the prisoner. (5) Although the Thirteenth Amendment bars prisoners' constitutional rights to compensation, the legislature created a statutory avenue for prisoners to assert those rights. Thus, the prevailing dogma surrounding prison labor is something that requires closer examination, particularly through the lens of employment law.

This Comment addresses the need for a presumption that all prisoners are covered under the Fair Labor Standards Act ("FLSA"), and proposes a two-pronged solution to the problem of unpaid and underpaid prison laborers. To begin, Part I of this Comment offers insight into the modern-day prison labor system. Part II gives a brief history of prison labor in the United States. Next, Part III discusses the various types of state prison labor systems and explores the Fair Labor Standards Act. Finally, Part IV of this Comment details the proposed changes including modifications to the current Economic Reality Test when analyzing

employment disputes in the context of prison labor. Additionally, Part IV suggests an amendment to the Constitution to eliminate the clause that allows for involuntary servitude as punishment for a crime.

1. PRISON-LABOR PRODUCED GOODS BROUGHT TO THE FORE

   Imagine that you are shopping at a Whole Foods Market. As you peruse the seafood aisle, you settle upon a particular fish raised in Colorado by a company called Quixotic Farming. (6) It is an expensive gourmet tilapia, but as a seafood lover, you spring for it. You do not research the origins of the tilapia because you trust that Whole Foods has delivered a product that comports with the company's humanitarian ideals. (7) You purchase the fish, only to later discover, along with thousands of other Whole Foods shoppers in 2015, that it was farm-raised by state prison inmates working for Colorado Correctional Industries ("CCI"), a branch of the Colorado Department of Corrections ("CDOC"). (8)

   The prisoners working for CCI earn between $0.74 and $4.00 a day to raise the tilapia that you unwittingly purchased. (9) This is on par with the average daily income of workers in underdeveloped countries, such as Afghanistan and the Philippines. (10) Moreover, the CDOC makes $0.85 for every pound of tilapia raised, which Whole Food in turn sells to its customers for $11.99 per pound, having paid comparatively little for the fish. (11) Although Whole Foods does not directly contract with CCI, it reaps the benefits of the prison labor utilized by Quixotic Farming at a very low cost. Had Quixotic Farming not hired inmate laborers through CCI at such a low cost, (12) it would have had to pay Colorado's prevailing minimum wage, which was $8.23 per hour in 2015. (13)

   1. Common Fictions Surrounding Prison Labor Programs

   Although Whole Foods has since taken the tilapia off of its shelves in response to customer protests that likened inmate labor to slave labor, the company has steadfastly defended its actions. (14) Whole Foods argued that its decision to sell a product raised by the hands of under-paid prisoners was not wrong because CCI intended to give its 1,800 inmates (15) employment training to make the inmates more marketable after exiting the prison system. (16)

   CCI, which requires that its inmate employees have at least a GED diploma, claims to have great success in lowering the recidivism rate for the prisoners who participate in the program (a "nearly 20% reduction in recidivism for the men and women employed by CCI versus non-matched general population inmates") because it teaches the prisoners skills that make them employable outside of prison. (17) However, this reduction could also be attributed to the fact that all of the participating inmates have a GED, and inmates who have a GED, in general, have been shown to have lower recidivism rates than those inmates without the degree. (18) Furthermore, although the inmates learn how to raise fish in captivity, which is a valuable trade, the job opportunities outside of prison with this specialized skillset cannot be said to be bountiful. (19)

   CCI's mission statement proclaims that its program "teaches and develops a work ethic often found lacking or underdeveloped in today's inmate." (20) Prisoners of a minority race or ethnicity comprise close to 60% of the American prison population, while only being around a quarter of the country's population; (21) thus, CCI's mission statement perpetuates the pervasive myth in our culture that poor or minority people are lazy and have no work ethic. This deceptive trope, also known as the "culture of poverty myth," (22) completely discounts the true underlying reasons for minority poverty in America, such as the legacy of slavery and institutionalized racism, and instead posits that impoverished and particularly minority Americans end up in prison because they prefer a life of crime to getting a job. Apart from the example of CCI, many similar programs are based upon the same goal--to imbue prisoners with the work ethic that they are supposedly lacking. This lofty and misguided goal is how many prison work programs justify paying inmate workers little to no wages for their often back-breaking work.

2. A HISTORY OF AMERICAN PRISON LABOR

   Before delving into the applicable law, the following sections chronicle the rise and fall of various American prison labor institutions. Underlying each institution is the drive for profit and the desire for cheap labor--the same themes that underlie prison labor institutions today.

   1. "Black Codes" in Post-Civil War America

      Modern prison labor is inextricably bound to systemic racial oppression and social and economic disparities between blacks and whites. Therefore, prison labor cannot be discussed without first discussing the aftermath of slavery. With the official end of chattel slavery in the United States in 1865, the United States arrived at a crossroads because the legality and availability of slave labor, in its purest form, was extinguished. (23) As journalist Ta-Nehisi Coates observed,

      The end of enslavement posed an existential crisis for white supremacy, because an open labor market means blacks competing with whites for jobs and resources...Postbellum Alabama solved this problem by manufacturing criminals. Blacks who could not find work were labeled vagrants and sent to jail, where they were leased as labor to the very people who had once enslaved them. (24) Therefore, although the Thirteenth Amendment marked the death of one form of cheap labor, it left a new form in its wake.

      After the North won the American Civil War and in the brief interlude before the full force of the Thirteenth Amendment went into effect, several states in the South instituted "black codes." (25) The term collectively refers to the plethora of statutes that criminalized an array of behaviors ranging from vagrancy to a black servant's unauthorized breach of a "labor contract" with a white employer. (26) For example, an 1865 Mississippi code expanded the crime of vagrancy, which is punishable by arrest and a fine, to include being unemployed, living with a partner outside of marriage, and not having a permanent residence. (27) If the offender could not pay the fine following arrest, then he or she would be hired out to whomever could pay the fine in exchange for the offender's forced labor. (28)

      Although many of these statutes were not explicitly race-specific, in application they were almost exclusively enforced for blacks. (29) The statutes applied to the millions of former enslaved persons who had neither the time nor the means to secure housing or employment--let alone food and medical care--in the shocking and tumultuous time following the end of the war and the Emancipation Proclamation. (30)

      In this way, the "black codes" ensured that former slaveholders would continue to have access to cheap labor by profiting...