** PART I **
ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OPINION ON THE FOLLOWING QUESTIONS:
1. DOES ARTICLE XXIII , SECTION 2 OF THE OKLAHOMA CONSTITUTION PROHIBIT ALL CONTRACTING OUT OF PRISON LABOR, BOTH TO PRIVATE ENTERPRISE AND FOR PUBLIC WORK PROJECTS?
2. IS IT CONSTITUTIONAL FOR THE OKLAHOMA DEPARTMENT OF CORRECTIONS TO CONT-ACT WITH EITHER PRIVATE ENTERPRISE OR OTHER STATE AGENCIES, MUNICIPALITIES, OR COUNTIES FOR THE PROVISION OF INMATE LABOR?
3. DOES THE FACT THAT INMATES RECEIVE WAGES FOR THEIR WORK AFFECT THE CONSTITUTIONALITY OF THE ACT OF EITHER CONTRACTING OUT PRISON LABOR TO PRIVATE ENTERPRISE OR TO STATE GOVERNMENTAL ENTITIES?
4. ARE THE PROVISIONS IN THE OKLAHOMA STATUTES AUTHORIZING PRISON LABOR IN THE MANNER SPECIFIED BY SUCH STATUTES CONSTITUTIONAL?
BECAUSE YOUR QUESTION MAY BE ANSWERED BY REFERENCE TO CONTROLLING CASE LAW, THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NOT NECESSARY. THE DISCUSSION WHICH FOLLOWS IS, THEREFORE, NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL; IT REPRESENTS, RATHER, THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
I. ARTICLE XXIII , SECTION 2 OF THE OKLAHOMA CONSTITUTION
YOUR FIRST QUESTION ASKS WHAT SPECIFIC ACTIVITY IS PROHIBITED BY ARTICLE XXIII , SECTION 2 OF THE OKLAHOMA CONSTITUTION. YOU DISTINGUISH BETWEEN CONTRACTS FORMED WITH PUBLIC ENTITIES AND THOSE FORMED WITH PRIVATE ENTITIES. ARTICLE XXIII , SECTION 2 OF THE OKLAHOMA CONSTITUTION PROVIDES, "THE CONTRACTING OF INMATE LABOR IS HEREBY PROHIBITED." OKLA. CONST. ARTICLE XXIII , SECTION 2.
TWO OKLAHOMA SUPREME COURT CASES PROVIDE THE ONLY AVAILABLE GUIDANCE FOR ANSWERING YOUR QUESTION. RICE V. STATE,232 P. 807 (OKLA.1925), INVOLVED A CONTRACT FORMED BETWEEN THE STATE AND A PRIVATE MANUFACTURER FOR THE PROVISION OF INMATE LABOR TO MANUFACTURE SHIRTS INSIDE THE STATE PENITENTIARY. THE RICE COURT HELD THAT THE CONTRACT FELL OUTSIDE THE SCOPE OF ARTICLE XXIII, 2, STATING THAT THE CONTRACT'S SOLE PURPOSE WAS NOT THE CONTRACTING OF CONVICT LABOR. THE COURT BASED ITS DECISION ON THE TERMS OF THE CONTRACT INVOLVED: THE STATE FURNISHED THE MACHINERY, EQUIPMENT, ALL MATERIAL, AND ALL LABOR, AND THE LABOR WAS PERFORMED IN THE PRISON AND UNDER THE STATE'S CONTROL. THEREFORE, THE PURPOSE OF THE CONTRACT WAS NOT SOLELY TO CONTRACT CONVICT LABOR.
THE RICE COURT DISTINGUISHED THE CONTRACT INVOLVED IN THE RICE CASE WITH ONE INVOLVED IN A UTAH CASE IN WHICH THE CONTRACT WAS DECLARED VOID UNDER A PROHIBITION SIMILAR TO ARTICLE XXIII , SECTION 2. THE CONTRACT IN THE UTAH CASE INVOLVED THE HIRING OF INMATES IN A CORPORATION OUTSIDE THE CONTROL AND MANAGEMENT OF THE STATE. THE RICE COURT INFERRED THAT THE FRAMERS OF THE CONSTITUTION DRAFTED ARTICLE XXIII , SECTION 2 FOR THE PURPOSE OF PROHIBITING THE "LEASING OR FARMING OUT" OF CONVICTS TO PRIVATE CORPORATIONS OR INDIVIDUALS, POTENTIALLY RESULTING IN CRUELTY TO THE PRISONERS. RICE AT 813.
IN SIBEL V. STATE BOARD OF PUBLIC AFFAIRS, 244 P.2D 307 (OKLA.1952), THE OKLAHOMA SUPREME COURT HELD THAT A CONTRACT BETWEEN THE STATE BOARD OF PUBLIC AFFAIRS AND THE STATE BOARD