In February 2016, President Obama signed a bill that banned goods made by certain prisoners and other workers who toil under conditions of forced labor. Oregon senator Ron Wyden, who helped push the bill through Congress, triumphantly declared that "this law slams shut an unconscionable and archaic loophole that forced America to accept products made by children or slave labor." What immoral loophole was he referring to? Not the most well-known one--the notorious Punishment Clause in the 13th Amendment that abolished slavery and involuntary servitude in the U.S. "except as a punishment for crime." That constitutional loophole is the legal basis for imposing forced labor in America's prisons, which hold more than 20 percent of the world's incarcerated population. These facilities annually produce goods and services worth tens of billions of dollars from the labor of largely unpaid prisoners. The bill signed by Obama turned a blind eye to this domestic injustice and the trade it upholds. Instead, it was aimed solely at shutting down the import of prison-made products from other countries. And the loophole in question was a legacy from an earlier embargo, the 1930 protectionist Smoot-Hawley Tariff Act, which banned most but permitted some goods if there was high domestic demand for them. In closing this loophole by banning all imports, the U.S. government was able to dust off its standing as a humanitarian champion of the fight against global slavery. Yet this step forward only exposed a widening moral gap between the zero tolerance shown toward prison labor overseas and the longstanding acceptance of the same conditions at home, where the majority of the 1.2 million Americans incarcerated in state and federal prisons work under duress, for nothing or for penny wages. It is repugnant that goods made by foreign prisoners are forbidden while those produced by our own are freely purchased by government agencies. In many states, these goods are available on the open market, not to mention overseas, since there is no corresponding ban on exports from the U.S. Later that year on September 9, as if in response, the biggest prison strike ever broke out, in large part as a protest against domestic "prison slavery." Masterminded by the Free Alabama Movement, it was observed in twenty-four states -- including Texas, Mississippi, Oregon, Illinois, Virginia, California, Georgia, Washington, South Carolina, Michigan and Florida, in addition to Alabama -- and an estimated 57,000 prisoners participated in as many as 46 facilities. The strike was not an isolated action; it was preceded and followed by several others. And it resonated far beyond the prison walls, as initiatives got underway, all across the country, to eliminate the 13th Amendment's prison slavery exception from state constitutions and pave the way for fair pay for incarcerated workers. A nationwide network, the Abolish Slavery National Network, sprang up to coordinate these efforts. By the Fall of 2023, majorities in seven states had voted on amendments to end prison slavery (joining Rhode Island, that had done so in 1843), and many other bills were being prepared for consideration, including on Capitol Hill itself. These efforts, on the inside and the outside, occupy a significant place in the new abolition movement; they are closely chronicled in this book and we, the authors, support and participate in them. The campaign to end penal servitude speaks directly and explicitly to the unfinished business of Emancipation. By all norms of international law, constitutional slavery is a crime against humanity, and should be annulled. No one should be compelled to work, or be punished for refusing to do so. Unpaid, or penny-wage, labor is a stark violation of human and labor rights. No less oppressive are the unregulated and often demeaning conditions under which incarcerated people work in the U.S. The legacy of hard labor, imposed as part of a "debt to society," is no more acceptable than capital punishment or a life sentence without parole. Despite the moral clarity of these tenets, at this point in time, the outcome of efforts to "end the exception" is by no means straightforward. In some states where constitutional amendments have passed, daily life behind the walls is unaltered; forced labor continues as before, and wages have not budged. Men and women still face punishment, including beatings, lockdowns, sexual assault, loss of family visitation rights, elimination of good time credit, and solitary confinement for refusing to work. Removing the threat of coercion from a work assignment will take much more than a change in the letter of the law, and establishing the right to fair pay and labor protections is an even harder road. In Colorado, the first state to pass an anti-slavery amendment in 2018, the effort to implement the changes has involved closely-fought litigation in the courts. In New York, the 13th Forward coalition (in which we are active members) is exploring a range of legislative approaches. In addition to pushing an amendment to end slavery, the coalition is attempting to pass a statutory bill on fair pay, standard labor protections, and the right to organize. It remains to be seen whether litigation or legislation will be more effective, or whether the impact of such new laws and rights can penetrate the thick culture of custodial rules and rituals through which guards and officials have run facilities with impunity for generations. Penal history shows us that prison reformers have come and gone, but the customary, violent praxis of the jailhouse "screw" has proven as deeply resistant to change as that of the rank-and-file of police departments. The amendments and acts may fall short unless these correctional officers face immediate consequences for violating the new laws, or unless prisoners have a pathway to pursue legal action against them. Some abolitionists have questioned the focus on ending the exception and winning worker rights. The energy is misdirected, they say, if it simply results in the recapture of wages by the state to pay for room and board in addition to restitution, court fines, family support, and other facility costs. States already deduct up to 80% of the paltry wages on offer, and any pay hike might further feed, or subsidize, the system. So, too, it has been argued that the legal status of prisoners as akin to "slaves of the state" cannot be redeemed by adopting the identity of "workers" with its associated rights. The American carceral system is too tethered to the violent legacy of slavery and white supremacy for the dignity and value of work to be fulfilled under conditions of captivity. We respect these arguments, based, as they are, on sound speculation. In response, we believe that the anti-slavery logic deployed by the movement to end the exception is a necessary, though not sufficient, approach to eliminating forced work. It also speaks to the very real afterlives of slavery that permeate many aspects of the criminal justice system and which are unduly felt by African Americans held captive within it. Based on our interviews and our own experience, we also believe that, for those on the inside, the provision of meaningful jobs on a voluntary basis and the establishment of fair wages would have a transformative impact. For one thing, these measures, if properly implemented and protected against garnishing by the state, would alter the balance of power significantly within carceral facilities. Taking away the discretionary power of staff to discipline and punish around work assignments is no small thing in a system governed, at all times, by the threat of institutional violence. Such advances are also likely to open the door to other prisoner rights that are not directly tied to labor: the right to vote, to litigate, or to access skill-building educational programs in systems that proclaim their commitment to rehabilitation. So, too, many of the formerly incarcerated people we interviewed for this book spoke frankly about the difference it would have made in their lives to earn surplus income that is not swallowed up by the purchase of marked-up items from the commissary store: of being able to relieve their debt-burdened families from having to support them; of saving enough money to reenter society on a stable footing; of contributing toward earning future benefits such as Medicare, Social Security or unemployment insurance; and of freeing themselves from the need to participate in the risky, and predatory, trade in contraband goods that is a direct by-product of ultra-low pay that has been stagnant for decades, while the price of goods has risen considerably. As for the long-term abolitionist goal of decarceration, we believe that criminal justice officials would almost certainly be pressured to shrink their prison populations if faced with considerably higher wage bills. The greatly increased cost of keeping open facilities in which imprisoned men and women do all the work of maintenance--cooking, cleaning, repairing, and laundry, among other housekeeping tasks--would make it difficult, politically and economically, to sustain mass incarceration's vast archipelago. Of course, paying fair wages is not the only route to decarceration. There are many other ways for abolitionists to do that work. Like Angela Davis, we believe, ultimately, in "creating the kind of society where prisons are no longer necessary." But prison slavery abolition is a necessary step on the pathway to justice, even though the road beyond still needs to be built. Excerpted from Abolition Labor: The Fight to End Prison Slavery by Andrew Ross, Tommaso Bardelli, Aiyuba Thomas All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.
