Made in America: Race, Trade, and Prison Labor

Justified on redemptive and rehabilitative grounds, prison industries in the United States, built on the backs of prisoners, are thriving. Prisoners laboring, often for little or no pay, to produce goods and services for the government or for private entities, is not a new phenomenon. But the United States has been incarcerating at a globally unprecedented rate, estimated at five times higher than most countries in the world. The enormous scale of incarceration in the United States is made even more troubling by the overrepresentation of persons of color in the prison system. It is hardly surprising that as federal and state prison industries have grown, so have prison industries that rely on prison labor for private sector profit, and that such labor is primarily performed by minorities, particularly African Americans. Critics have rightly warned about the moral hazards incurred when profit and punishment go hand in hand with publicly run prisons providing cheap labor for private companies. But the moral failures of the prison system, intertwined with the disturbing history of race, are conveniently masked in the euphemism of rehabilitation and redemption. In a new, Orwellian twist, the prison industry has also managed to hitch itself to the populist, anti-international trade wave that has reinvigorated economic nationalism. Add “Buy American” and “Made in the USA” to the purported benefits of prison labor for yet another layer of rhetorical flourish. Thus, in addition to rehabilitating prisoners and preparing them for life after prison, hiring American workers and bringing jobs back to the United States are now providing further justifications for the exploitation of prison labor and the proliferation of prison industries. “Insourcing” which relies on inmate labor can be an even cheaper alternative to outsourcing which relies on Third World labor. Companies seeking to preserve savings from low-cost overseas labor can turn to prison labor because employing prisoners does not require compliance with minimum wage or other safety and environmental regulations. Recasting prison industries as the patriotic return of American manufacturing jobs from overseas may be one of the most troubling euphemisms deployed by proponents of prison labor. The substitution of low-wage foreign workers laboring in unsafe working conditions for U.S. prisoners working for low or no pay is a cynical channeling of the rising awareness of the plight of domestic American workers in the age of globalization. Prisoners make cheese for Whole Foods, underwear for Victoria Secret as well as service call centers for financial institutions. Prison-made products and services are increasingly sold not only to state agencies, but also on the open market in the United States and even exported abroad. Even as the United States berates China about its use of forced prison labor or its exports of products made by convicts, the United States, with its own burgeoning inmate pool, has ironically engaged in similar practices. While U.S. laws ban imports of prison labor goods, there is no parallel statutory provision prohibiting U.S. exports of such goods. Moreover, the historical intersection of race and incarceration in the United States, with the post-Civil War development of convict leasing and chain gangs as modes of prison labor, raises the troubling prospect of pervasive racial bias. This systemic bias, combined with the requirement that all prisoners must work, render U.S. prison labor programs morally suspect in ways not so remote from China’s use of political dissidents in reeducation camps. The first part of this Article provides a general overview of the prison labor industrial complex and examines the relationship between big business and prison labor in both state and federal systems. It also focuses on the volatile and controversial outsourcing dynamics in the ongoing trade debate. Next, the Article explores the structural complexity intrinsic in prison labor because it embodies both economic and rehabilitative objectives and thus does not fit neatly into the conventional categories of market or non-market work, creating conceptual difficulties in both analysis and proposed solutions. As a result, prison workers are not deemed employees and thus not eligible for the minimum wage afforded other workers. This Article also provides the necessary historical background, particularly the racial dimensions at the root of state and private exploitation of prison labor, arguing that race and incarceration in the United States cannot be separated. The legal and economic ambiguity of prison labor allows the exploitation of racial disparities in the prison system to continue. The last part of the Article examines the wildly inconsistent case law that addresses the application of the Federal Labor Standards Act (“FLSA”) and argues that the profit-making, economic character of prison work makes it a market activity that entitles prison workers to the minimum wage mandate of the FLSA. The proposal here is intended as a modest first step towards prison labor reform. It is grounded in pragmatism and incrementalism and is not meant to address all the intricacies intrinsic in this historical tragedy and deeply entrenched system of racial and social control. Rather, it is a plausible proposal that, if implemented, would be an important first step towards reform. Legally recognizing prison workers’ right to minimum wage will accomplish a significant immediate change, and will bring prison labor into heightened scrutiny enabling a national conversation about broader reform.