Saturday, February 25, 2006

Pennsylvania Correctional Institute Special Audit

(I submitted last night this short piece for publication in the newsletter of the Michigan Chapter of the Anarchist Black Cross Network, a prison abolition group.)

On September 13, 2005, the Pennsylvania Auditor General issued an audit report of the Pennsylvania Correctional Industries. Among the several negative findings, one stands out: “PCI stockpiled $32 million in cash and investments from profits accumulated from sales made mostly to itself—that is, the Department of Corrections—and to other state departments.”

The “stockpile” was aggregated over a period of nine years, rising from $10M to $32M in just the last five years. The amount of the stockpile is equal to PCI’s entire annual budget. Cash can be easy to come by when you pay your workers well under a dollar an hour and your products are consistently priced among the highest (if not the highest) prices on the market compared to other prisons and private industry.

PCI pays workers from 19 cents an hour to a maximum of 42 cents an hour. “Production bonuses” can raise wages up to 70 cents an hour.

Although sales declined 25% during the five-year audit period, from $44M down to $33M, the prices charged for items ensured high profits. A foam mattress had a PCI price of $123.50, while a private vendor with whom the DOC also does business has the same product for $48.20. Dormitory beds are made in several states’ prison industries: the audit report cited six other states that charge from $121.00 to $310.00 for the finished product; PCI charges $997.18. Bed sheets come at a 50% premium; towels up to a 60% premium; and a washcloth around 40% more than prison industries in other states.

Who pays these premiums? The Pennsylvania taxpayer.

Low costs and high prices make profit, which usually results in cash reserves. Cash reserves are common. But according to the Auditor General, a reserve of 10% to 15% of an annual budget ($3M to $5M in this instance) is appropriate. That is a far cry from the 100% reserve established here. To make matters worse, PCI did not use these excess funds to improve working conditions, training, or to expand their market.

The other findings in the audit report included:

PCI did not live up to its stated mission or its own strategic plans.
PCI did not maximize inmate employment. Even though inmate population grew, inmate employment decreased.
PCI used its excessive profits and high prices to subsidize 14 unprofitable businesses.
PCI used a one-time irregular accounting method to account for a $2 million giveback to the Department of Corrections.
PCI did not aggressively market its goods and services.

Press coverage from issuance of the report (September 13, 2005) to the time of this writing (February 24, 2006) has been dismal: one article on September 15, 2005, in the Pittsburgh Post-Gazette (Pennsylvania) on page B-1 that was 711 words long. Nothing has been published since. A follow-up audit is schedule for late 2007.

In a masterpiece of understatement, state Auditor General Jack Wagner said, "This program is not properly run and needs to be seriously overhauled."

Mismanagement and financial irregularities may not be new to government, nor are they unique to Pennsylvania. But to do it all on the back of inmates is shameful.

The Auditor General’s website has a press release and the full text of the report here.

Monday, November 28, 2005

Limited history of 13th Amendment

I have often wondered why the language reserving slavery and involuntary servitude for prisoners was included in the 13th. I completed the first layer of research on the origin of the language and that is presented below.

I have only antecdotal evidence on why it was originally proposed in 1784. I have a working assumption that it reflected the use of prisoners in workhouses - no different than how the poor were being treated. I present some of my thoughts in the last section of this post.

History of language.
Thomas Jefferson was actively involved in surveying and settling the “northwest territories” that lay west of the Appalachian Mountains (north of the Ohio River and east of Mississippi River). Coordinated settlement activities did not proceed in earnest until 1784 when Virginia ceded its claim to lands in a quid pro quo for the right to award bounty lands in the territory.

During 1784 and after Congress approved his plans and funds for surveying the Northwest Territories, Thomas Jefferson drafted an additional document proposing the form of government. The plan was approved by Congress, but never put into effect.

In a long paragraph in a provision marked “5,” Jefferson wrote: “That after the year 1800 of the chriftian era, there fhall be neither flavery nor involuntary fervitude in any of the faid ftates, otherwife in puhifhment of crimes, whereof the party fhall have been duly convicted to have been perfonally guilty.”

After a couple of more years, Congress enacted the Northwest Ordinance of 1787, which is considered to be the single most important piece of legislation in the Articles of Confederation and Perpetual Union period. The Ordinance provided the means by which new states would be created out of the western lands and then admitted into the Union.

Article 6: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.”

On 23rd September, 1862 Abraham Lincoln issued his Emancipation Proclamation. The statement said that all slaves would be declared free in those states still in rebellion against the United States on 1st January, 1863. The measure only applied to those states which, after that date, came under the military control of the Union Army. It did not apply to those slave states such as Delaware, Kentucky, Maryland, Missouri and parts of Virginia and Louisiana, that were already occupied by Northern troops.

There were well-founded concerns that the Proclamation had no force or effect. First, the subject matter seemed to be better reserved by Congress rather than the President. Second, it sought to change the laws of governments now sovereign in their own right vis-à-vis the federal government of the Untied States. With dubious footing, only a constitutional amendment could assure change.

In 1864, the proposed 13th Amendment passed the Senate with greater than the 2/3’s majority required. It passed the House, too, but by fewer than the votes needed to send it to the States (where 3/4s approval would be required).

On January 31, 1865, the Senate and House both passed the Amendment by greater than 2/3’s. It went to the states with an uncertain future. With 36 states, many in the south, it was not certain how or if the Amendment would be ratified.

Johnson assured southern states that Congress was not going to be aggressive about interfering with states’ rights to govern their own people after the passage of the Amendment. Responding to these assurances, South Carolina, Alabama, North Carolina, and finally Georgia approved.

The 27th state (marking 3/4s + 1) was Georgia on December 6, 1865, thereby completing ratification. Mississippi had rejected in two days earlier, and finally approved of it almost 110 years later on March 21, 1995.

True to his word, Johnson (a democrat) vetoed the Civil Rights Act of 1866 pushed through Congress by the “Radical Republicans.” The Act was written to negate the southern states use of Black Codes. Congress overrode Johnson’s veto. Eventually, the 14th Amendment (1868) brought equal protection and due issues to enforce the 13th.

Back to the 13th, compare the 1784 and 1787 writings with the 13th Amendment to the United States Constitution reads: “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.” (1865)


My theory is that the emphasis of the 13th in excluding prisoners was to continue to allow involuntary servitude. When you read how we treated the weakest amongst us - the poor - it becomes clear (admittedly anecdotally) that prisoners would fare no better. Prison workshops were in use, but the poorhouses were the public face. If we'd do this in front of everyone, then what do we do in the privacy of a walled prison?

As with most of our legal history, our story begins in England ...

The 'Workhouse Test Act' (1723). In 1723, Sir Edward Knatchbull's legislation “For Amending the Laws relating to the Settlement, Imployment and Relief of the Poor” allowed the establishment of workhouses where poor relief would be provided. This could be done either by an individual parish or through the combining of a number of neighboring parishes which would share the cost: parishes had the authority to rent or buy appropriate accommodation. The local JPs could also sub-contract the administration of relief to someone who would feed, clothe and house the poor for a weekly rate from the parish. Between 1723 and 1750, about 600 parish workhouses were established in England and Wales.

The legislation also marked the first appearance of the 'workhouse test' -- that anyone who applied for relief would have to enter the workhouse where s/he would be obliged to undertake set work in return for relief. The principle was that entering the workhouse should be a deterrent to casual or irresponsible claims on the poor rates. Only the truly desperate would apply to 'the house.'

In 1776, the first official workhouse returns were made showing the existence of about 2,000 workhouses, each with between 20 and 50 inmates. The cost of indoor relief was high; inefficient workhouse management led to increased social pressure for more sympathetic treatment of the poor. Also in 1776, Adam Smith published his Wealth of Nations in which he said that the State should not interfere with the economy but should let the laws of supply and demand operate freely. The implication of this for poor relief was that those who could not work should be allowed to fend for themselves -- and starve if necessary -- rather than having the State provide any form of relief. Further, it was thought that men would work for any wage rather than starve themselves and their families; lower wages would benefit employers and reduce the price of food.

The American colonists essentially imported the framework of the British Poor Laws. By the early 19th century, states required that counties or municipalities provide for the poor and needy. The local governments carried out this responsibility in one of four ways: by auctioning off the poor to bidders who could use them as workers; by contracting with wealthier families to take care of them, either as charitable acts or for pay or free labor; by placing the poor and needy in public institutions (workhouses); or by providing them with assistance in cash or goods.

Citizens and politicians publicly expressed their concerns about welfare from the country's beginnings. In the 1820s and 1830s, a reform movement swept many states. Local communities tried to replace all outdoor relief—the giving of cash and goods to the poor—with workhouses. These reforms were intended to rehabilitate the poor and replace frivolous welfare use with a work ethic.

I believe that Jefferson - being a realistic politician - knew that the use of prison labor could not be taken away from the states or territories. The local leaders would not vote for passage. He therefore proposed to do away with the use of labor resulting from an immutable condition - being African - but to preserve it as a punishment. Note the fine tuning in his original draft to ensure that even the prisoner was the correct person - must have been personally convicted - thereby taking out persons allowed to serve time on another's behalf (another common practice).

Monday, May 24, 2004

Law Review Articles on Prison Labor

Here is a list of cites for law review articles on the topic of prison labor. I am checking on which ones are available on the internet for full text viewing. I will update this post with live links as I find them. Most reviews, unfortunately but understandably, allow full text viewing (if at all without getting a hardcopy) in return for a subscription - the realities of cost management. If you have access to Lexis-Nexis, you can get the full text of each.

Death and Dying in America: The Prison Industrial Complex's Impact on Women's Health. Cynthia Chandler. Copyright (c) 2003 The Regents of the University of California on behalf of Berkeley Women's Law Journal - 2003. 18 Berkeley Women's L.J. 40

Data Privacy: The Use of Prisoners for Processing Personal Information. Sandra T.M. Chong. Copyright (c) 1998 The Regents of the University of California. U.C. Davis Law Review. Fall, 1998. 32 U.C. Davis L. Rev. 201

One Nation's Gulag is Another Nation's Factory within a Fence: Prison-labor in the People's Republic of China and the United States of America. Jonathan M. Cowen. Copyright (c) 1993 Regents of the University of California. UCLA Pacific Basin Law Journal. Fall, 1993. 12 UCLA PAC. BASIN L.J. 190

Watson V. Graves: Locked into Minimum Wage: Fair Labor and Standards Act Coverage of Prison Inmates. M.A. Cunningham. Copyright © Tulane University 1991. Tulane Law Review. June, 1991. 65 Tul. L. Rev. 1767

Making More Effective Use of Our Prisons Through Regimented Labor. Stefanie Evans. Copyright (c) 2000 Pepperdine University School of Law. Pepperdine Law Review. 2000. 27 Pepp. L. Rev. 521

Freeing Prisoners' Labor. Stephen P. Garvey. Copyright (c) 1998 The Board of Trustees of Leland Stanford Junior University. Stanford Law Review. January, 1998. 50 Stan. L. Rev. 339

The Chains may be Heavy, but they are not Cruel and Unusual: Examining the Constitutionality of the Reintroduced Chain Gang. Yale Glazer. Copyright (c) 1996 Hofstra Law Review. Hofstra Law Review. Summer, 1996. 24 Hofstra L. Rev. 1195

Prisoners as Entrepreneurs: Developing a Model for Prisoner-Run Industry. Sharon Goodman. Copyright © Trustees of Boston University 1982. Boston University Law Review. NOVEMBER, 1982. 62 B.U.L. Rev. 1163

Prison Labor. Brian Hauck. Copyright (c) 2000 President and Fellows of Harvard College. Harvard Journal on Legislation. Winter, 2000. 37 Harv. J. on Legis. 279

Survey of Developments in North Carolina Law and the Fourth Circuit, 1996: v. Prisoner's Rights: Limiting Relief for Injured Working Inmates: Richardson v. North Carolina Department of Correction and the Exclusive Remedy Provision. Justin B. Heineman. Copyright (c) 1997 North Carolina Law Review. North Carolina Law Review. September, 1997. 75 N.C.L. Rev. 2428

Rattling Chains and Smashing Rocks: Testing the Boundaries of the Eighth Amendment. Sander Jacobowitz. Copyright (c) 1997 Rutgers School of Law - Camden. Rutgers Law Journal. Winter, 1997. 28 Rutgers L. J. 519

The Search for a Workable Standard for When Fair Labor Standards Act Coverage Should Be Extended to Prisoner Workers. Matthew J. Lang. Copyright (c) 2002 The Trustee of the University of Pennsylvania. Journal of Labor & Employment Law. Fall, 2002. 5 U. Pa. J. Lab. & Emp. L. 191

Making Prisons Work. Lisa C. Phelan. Copyright (c) 1997 Loyola of Los Angeles Law Review. Loyola of Los Angeles Law Review. June, 1997. 30 Loy. L.A. L. Rev. 1789

Prison Employment: A Long-Term Solution to the Overcrowding Crisis. Kerry L. Pyle. Copyright (c) Trustees of Boston University 1997. Boston University Law Review. February, 1997. 77 B.U.L. Rev. 151

The Prison Industrial Complex: A Modern Justification for African Enslavement? Chris Weaver and Will Purcell. Copyright (c) 1998 Howard Law Journal. Winter, 1998. 41 How. L.J. 349

Prisoners and the FLSA: Can the American Taxpayer Afford Ectending Prison Inmates the Federal Minimum Wage? Alexander B. Wellen. Copyright (c) 1994 Temple University of the Commonwealth System of Higher Education. Temple Law Review. Spring, 1994. 67 Temple L. Rev. 295

Friday, May 21, 2004

Web Sites on Prison Labor

Few sites are devoted to prison labor, but a number of sites address the issue along with other issues.

American Gulag, News and resources on Prisoners, Prisons, and Prison Abolition. Contains a lot of information on prison issues, but the word "anarchist" is used quite frequently, perhaps too much so.

Missouri Prisoners Labor Union. Frequently updated site covering more than just prison labor issues.

Prison Activist Resource Center - Prison Labor. Lengthy list of links to the DOC industry sites of the several states and the feds. Very useful.

Prison Legal News. Monthly newsletter. I've read a few issues. Well done and worth subscribing to, even if only to support the cause.

The Wire, Prison-Related News. Presented from the San Francisco State University servers. I suspect it is student-run - and I mean singular. Lots of links to articles and has been publishing for a couple of years.

The Other Side of the Wall. This site is no longer maintained, but anticipating that, the owners archived their nine years of work very well. Still a good resource.

Torture in Texas Prisons. Rather direct name, and (at times) equally direct content. Use the bar on the left to find prison labor information.

ACLU - Prisoner Rights. What set of links would be complete without the ACLU? On the right side is an entry for "Prison Industrial Complex." The content isn't always on-point.

Articles on Prison Labor

Most of the articles, unfortunately, are dated. But I will link them as I find them ...

UPDATE: Forgot to add this article in original post: The Prisoners of War, By Ian Urbina, AlterNet, October 27, 2003. Article on Unicor/FPI and the broader prisoner labor issue. Reads like an NPR piece - somewhat factual but just can't help taking jabs at republicans. Let's be honest here - this is a non-political site - but the legislation that effectively repealed the 1935 Act and thereby brought back prison labor was the Justice System Improvement Act of 1979 (Public Law 96-157). The Act was sponsored by Ted Kennedy, the House was controlled 276 to 157 by the democrats, the Senate 58-41-1 by the democrats, and Jimmy Carter was POTUS. What did W or the pubs have to do with that? Do you find it equally irritating when people can't keep politics to themselves?

'Made in USA' ... but By Convicts, Christian Science Monitor. January 14, 1998. Discusses Broward Optical, run out of Broward (FL) Correctional Institute, and the general prison labor situation.

Prison Labor: Workin' For The Man, by Reese Erlich, originally published in Covert Action Quarterly #54 - Fall 1995. One of the better articles, includes footnotes and informative (if dated) use of data.

Prison Labor: Profits, Slavery and the State, by "MC12," Maoist Internationalist Movement. Undated. The article has a decided bias against the process of using prisoners are laborers, and loosely uses the term "forced labor" as if the system in the United States were akin to the USSR's gulags or Communist China's laogai.

Doing time, 9 to 5, by Steven Elbow, Copyright 1995 Isthmus, Madison, WI. Plenty of examples, focused on local Wisconsin issues. Reads like a well-research op-ed piece.

Prison labor on the rise in US, by Alan Whyte and Jamie Baker, May 8, 2000. Published by the World Socialist Web Site, the article focuses on the relationship of prison labor, traditional labor unions, and legislation.

Prison Labor: Some Facts and Issues, by Karen Miller, copyright 2000. A lot of data, but presented in a narrative, and also inaccurate in two instances that caught my eye in a quick review. She cites the Hawes-Cooper Act as occurring in 1935 (it was 1929), and the Ashurst-Sumners Act as occurring in 1940 (it was 1935).

First Writing

This is a new blog for me. I practiced criminal law for over ten years, and now teach it at the college level. I have taught in the prisons and have developed and maintained friendships with inmates.

I first became interested in this topic as I taught the chronology of the prison workhouses in England, circa 1544, then into the United States in the 1800s, and culminating in its federal legislative death in 1935.

That was an interesting lesson in history and, since my undergrad was in Economics, I was not shocked at all to see the manipulation of the labor market end disastrously.

Then in 1979, with the Justice System Improvement Act, the 1935 legislation was rendered ineffective. We are now fully into the workhouse environment of centuries ago.

So I have begun my research, and it is very much in its infant stages. It is my intent, however, to make this important issue the subject of my dissertation. I intend for this web site to track my research and present it for comment to you as I progress.

I have been initially disappointed in my research, which is to relate that the level of scholarly research into the issue seems to be thin at best. Some prisons are paying 19 cents an hour to inmates, working them without breaks, subjecting them to constant verbal abuse, and in general treating them as slaves who should be thankful for the opportunity to work. How can this be without serious study? Articles appear here and there, but nothing in depth. A textbook I recently read that devoted six pages to the topic cited articles and prison yearbooks as its source. That is not a condemnation of the author, but a commentary on the resources available to him. The websites I have found have been authored by (understandably) angry prisoners or family, but generally lack any real pedagogical value.

I do not intend to take sides in this research. I wish to gather all relevant information and present it for your consideration.

If you have any articles, websites, or other information that you wish to inform me of or, as appropriate, use this blog to inform others, please e me at