[Pnews] Will Altering the 13th Amendment Bring Liberation to the Incarcerated 2.3 Million?

Prisoner News ppnews at freedomarchives.org
Mon Aug 7 13:46:43 EDT 2017


http://www.truth-out.org/news/item/41508-will-altering-the-13th-amendment-bring-liberation-to-the-incarcerated-2-3-million 



  Will Altering the 13th Amendment Bring Liberation to the Incarcerated
  2.3 Million?

James Kilgore - August 5, 2017
------------------------------------------------------------------------

High school students typically learn at least one "fact" about slavery: 
The 13th Amendment did away with it all. As usual, school history 
teaches a half truth. Like most promises of freedom, the 13th Amendment 
came with a catch, an exclusion clause that permitted both slavery and 
involuntary servitude "as a punishment for crime whereof the party shall 
have been duly convicted."

This "exception clause" drew considerable attention in anti-slavery 
circles in the decades immediately following the Emancipation 
Proclamation but then largely faded into the background. Even through 
the last several decades of mass incarceration, few people other than a 
handful of scholars have paid much attention to what historian Dennis 
Childs calls 
<http://www.truth-out.org/progressivepicks/item/34695-the-thirteenth-amendment-created-legal-slavery-through-incarceration> the 
"constitutional sanctioning of state-borne prison-industrial genocide."

However, in the past year, abolishing the slavery clause of the 13th has 
become a cause célèbre. The prison labor strike 
<http://www.truth-out.org/news/item/37644-we-re-freedom-fighters-the-story-of-the-nationwide-prison-labor-strike> of 
fall 2016 brought the issue to the fore. Led by members of the Free 
Alabama Movement (FAM) inside Holman prison, this action sparked a 
withdrawal of labor that some analysts 
<http://www.motherjones.com/politics/2016/09/prison-strike-inmate-labor-work/> say 
spread to as many as 29 prisons in 12 states. Kinetik Justice, the most 
prominent leader of FAM, explained 
<http://www.wbur.org/onpoint/2016/09/28/prisoners-inside-prison-strike> the 
motivation of the strike: "We understand the prison system is a 
continuation of the slave system…. The 13th Amendment abolished slavery 
supposedly but created it again in the next breath, because it 
birthed the criminal justice system … the institution of slavery with a 
$1,000 suit on."

Since the FAM-led strike, resistance 
<https://shadowproof.com/2017/02/08/2017-first-prison-rebellions/> in 
several prisons has kept questions of labor behind the walls in the 
public eye. Moreover, work stoppages and hunger strikes have occurred in 
a number of immigration jails in the Northwest 
<http://www.seattletimes.com/seattle-news/crime/ice-hunger-strike-abates-at-detention-center/> and 
Southwest 
<http://www.truth-out.org/news/item/41059-we-are-humans-not-animals-women-in-california-s-largest-immigrant-prison-hold-hunger-strike>.

Like the FAM-led strike, much of this resistance in immigration 
detention centers has focused on exploitation of labor. In an 
interesting twist on the exception-clause argument, those detained while 
awaiting results of an immigration proceeding reason that they cannot be 
compelled to work because they have not been convicted of any crime, 
thereby absolving them from any application of the 13th amendment.

In 2014, a suit against this practice was filed on behalf of nine 
individuals detained at the immigration facility in Aurora, Colorado, 
owned by the private prison company GEO Group. In March of this year, a 
Denver judge upgraded 
<https://www.washingtonpost.com/news/post-nation/wp/2017/03/05/thousands-of-ice-detainees-claim-they-were-forced-into-labor-a-violation-of-anti-slavery-laws/?utm_term=.5b4f3f8cc542> the 
suit to class action status. It now includes some 60,000 men and women 
held at Aurora over the years. The litigation claims those detained were 
subjected to "forced labor" when they were selected for a daily roster 
to carry out cleaning duties at the facility and paid $1 per day. The 
argument holds that this amounts to virtual slavery under 
<http://www.denverpost.com/2017/03/02/class-action-ice-detention-aurora-immigration/> Trafficking 
Victims Protection Act. GEO Group's argument held that the labor fell 
under ICE's Voluntary Work Program 
<https://www.ice.gov/doclib/detention-standards/2011/5-8.pdf>, and 
people signed up of their own volition.

Apart from actions behind bars, the highly acclaimed film, /13th/, has 
brought the exclusion clause to the attention of millions of activists 
and ordinary people. The film, directed by Ava DuVernay and nominated 
for an Academy Award, traces the historical roots of mass incarceration 
back to the period of chattel slavery.

The focus on the 13th Amendment will once again take center stage in the 
"Millions for Prisoners Human Rights March" in Washington, DC, on August 
19. Nonprofit human rights organization IamWE 
<http://www.iamweubuntu.com/about.html> and a long list of co-sponsors 
are the organizers. The core demand 
<http://www.iamweubuntu.com/millions-for-prisoners-human-rights.html> of 
the marchers is a congressional hearing focused on the 13th amendment 
and its "direct links" to various aspects of mass incarceration, 
including exploitation of labor, profiteering by private prison 
operators, the implementation of quotas for immigration detention, and 
racial disparities in prison populations and police violence.

Mallah-Divine Mallah, a member of the national organizing committee for 
the march, says the action intends to "galvanize" the movement at a 
national level. He told Truthout that there are lots of local struggles 
but nothing putting the light on the "diabolical aspect" of the prison 
system across the country, including labor exploitation.

*Prison Labor: A Case of Superexploitation*

Without a doubt, prison pay rates are appallingly low. A recent study 
<https://www.prisonpolicy.org/blog/2017/04/10/wages/> of prison wages by 
Prison Policy Initiative's Wendy Sawyer revealed that prison pay levels 
have actually declined nationally since 2001. She found that the average 
minimum daily wage paid to incarcerated workers for those who do basic 
maintenance work in the prison is now 86 cents, down from the 93 cents 
reported in 2001, with maximum daily wages falling from $4.73 in 2001 to 
$3.45 today. Moreover, six states -- Alabama, Arkansas, Georgia, 
Mississippi, South Carolina and Texas -- pay no wage at all for basic 
maintenance work. Louisiana, Missouri and West Virginia pay many such 
workers less than five cents an hour. Heather Ann Thompson, author of 
the prize-winning tale of the Attica prison rebellion, /Blood in the 
Water/, views 
<http://www.motherjones.com/politics/2016/10/prison-labor-strike-history-heather-ann-thompson/> these 
wage levels much like Kinetik Justice, saying, "It's absolutely fair to 
characterize it as slave labor, since constitutionally that is the only 
exception made for keeping people in a state of slavery."

Mallah, who spent over a decade behind bars himself, adds a further 
dimension to the nature of enslavement behind bars: coercion. He notes 
that prison authorities have various forms of leverage to force people 
to work. Refusing to report to a job may land a person in solitary 
confinement; result in the elimination of their access to commissary, 
phones and visiting; and potentially adding time to their sentence.

Lacino Hamilton, a captive in the Michigan State Department of 
Corrections for 23 years, agrees, "The motive for work in prison is 
seldom induced by reward, but by threat of certain punishment: Not 
working results in mind-numbing and humiliating restrictions, in an 
already restrictive environment."

The coercion element has heightened in recent years as people are 
increasingly charged for services. Incarcerated people are now often 
charged co-pays for health care, eyeglasses and wheelchairs, and they 
are also contending with decreases in clothing and food allocations that 
force them to buy overpriced goods through the commissary. Moreover, 
restitution and crime victims' funds often garnish a considerable share 
of prison wages. Sawyer says, in some instances these deductions from 
paychecks reach as high as 80 percent.

While money is central in this equation, Hamilton maintains that prison 
labor exploitation is also about the politics of power. He told Truthout 
via email that "prison work is designed to train and prepare imprisoned 
people for the unrewarding work awaiting most of them (us) upon release. 
It's designed to condition imprisoned men and women to accept the 
official or societal view that they are meant to be the permanent 
underclass. So, when the department requires that all prisoners maintain 
a 'routine work assignment,' it's to program prisoners to become someone 
whose energy and labor is always at the disposal of higher ups."

The fall in wages has also gone hand-in-hand with slashing the budgets 
of education and other activities. Political prisoner David Gilbert, who 
has spent over 30 years in New York state prisons, wrote to Truthout 
about how in the past there was a "range of activities where prisoners 
could feel like they were accomplishing something, feel good about 
themselves." These have for the most part disappeared, along with what 
he calls "the program which is by far the most beneficial -- college." 
Nationally, the number of in-prison college programs has dropped from 
over 350 in the early 1990s to less than a hundred today. A study 
<https://www.nytimes.com/2016/02/16/opinion/a-college-education-for-prisoners.html> by 
the New York State Bar Association showed that the number of college 
degrees awarded to people in the state's prisons fell from 1,078 in 1991 
to 141 in 2011.

This reshaping of the prison landscape has gradually eliminated most of 
the rehabilitation-oriented programs, leaving menial jobs and dead time. 
As Gilbert put it, "For the vast majority there's a tremendous amount of 
idleness, at times combined with the demeaning treatment from staff."

*Changing the 13th Amendment: Implications*

For the moment, a key question is, to what extent the removal of the 
exception clause would address these issues. There is a wide range of 
views on this matter. Mobilization materials 
<http://www.iamweubuntu.com/distribution-materials.html> distributed by 
organizers state, "At a minimum, we expect to have an immediate impact 
on mass incarceration laws." Azzurra Crispino, who was a major 
spokesperson for supporters of the 2016 FAM strike and currently heads 
Prison Abolition Prisoner Support, believes such impact would be 
decisive and swift. She told Truthout that the removal of the exception 
clause would force prison authorities to respect the whole gamut of 
labor laws they are now free to ignore -- minimum wage, pensions, health 
and safety regulations. "This would immediately make the prison system 
unaffordable," she contends. She predicted that within a year the prison 
population could shrink by up to 70 percent.

Though less optimistic than Crispino, Mallah also sees the potential in 
modifying the amendment. "The captured market aspect would be changed." 
In his view, there would be an "impact on the quality of interaction 
between the people who are incarcerated and those they work for." He 
sees altering the amendment as a way to "galvanize people," to address 
the reality that "nobody cares about slaves, nobody cares about prisoners."

However, some activists, legal scholars and economists are more 
skeptical about the impact of removing the exclusion clause. While the 
clause constitutes the major overarching framework enabling authorities 
to exempt incarcerated people from labor laws, other legal measures also 
facilitate prison slave labor. Court decisions and legislation have also 
excluded people in prison from categorization as employees. A number of 
cases 
<https://www.prisonlegalnews.org/news/2007/may/15/prisoner-not-covered-by-fair-labor-standards-act/> pertaining 
to the Fair Labor Standards Act (FLSA) have upheld this exclusion. In 
one instance, a claim for coverage under FLSA argued that if Congress 
wanted to exempt people in prison from the terms of the act, they would 
have specifically mentioned them. The Seventh Circuit court's 
explanation 
<https://casetext.com/case/lashbrook-v-grace-coll-theological-seminary> in 
denying the appeal was that "the reason the FLSA contains no express 
exception for prisoners is probably that the idea was too outlandish to 
occur to anyone when the legislation was under consideration by 
Congress." While not employing exactly the same logic, a number of cases 
have upheld the right of government and nonprofit sector employers to 
hire interns without paying them a wage, largely under the theory 
<https://www.propublica.org/article/when-interns-should-be-paid-explained> that 
an internship is volunteer work, not requiring payment.

Section 26 U.S.C. 3306(c)(21) 
<https://www.law.cornell.edu/uscode/text/26> of the tax code reiterates 
the FLSA decisions, noting that any service performed in a penal 
institution isn't considered employment. Chandra Bozelko, who spent 
seven years in prison, emphasizes 
<http://www.nationalreview.com/article/443747/prison-labor-laws-wages-make-it-close-slavery> that, 
like the 13th Amendment, these laws are yet another way in which people 
in prison are dehumanized by the labor regime: "this definition is much 
more dehumanizing than any low wage," she claimed 
<http://www.nationalreview.com/article/443747/prison-labor-laws-wages-make-it-close-slavery> in 
a recent article in National Review, "This law tells an inmate that what 
she does at her prison job doesn't matter, regardless of what she's 
paid. It's one thing to be devalued; it's another to be denied outright."

Moreover, Steven Pitts, the associate chair of the UC Berkeley Labor 
Center, sees a reflection of the increasingly precarious nature of work 
in prison labor regimes. In his view, the 13th Amendment is not "the 
legal vehicle that keeps people from being classified as an employee." 
Rather, he contends that over the past 40 years, the line between 
employer and employee has become less and less clear, with many 
employees being redefined as consultants or independent contractors. At 
present, he maintains there is "always a problem applying basic labor 
law that assumes a clear line between employer and employee." The 
blurring of this line has enabled employers to hire "workers" or 
"associates" for a flat rate and exclude them from benefits like 
retirement pay, paid holidays and job security.

*Who Do People in Prison Work For?*

Assessing the application of the exclusion clause raises the question of 
who actually employs people in prison. Despite popular notions 
<http://returntonow.net/2016/06/13/prison-labor-is-the-new-american-slavery/> that 
incarcerated workers primarily generate profits for major corporations, 
less than 1 percent of those in prison are under contract to private 
companies. According to federal law, any firm contracting for prison 
labor to produce goods to be sold to the public must register with the 
Prison Industry Enhancement Certification Program (PIECP). According to 
the PIECP's first quarter report 
<http://www.nationalcia.org/wp-content/uploads/First-Quarter-2017-Certification-Listing-Report.pdf> for 
2017, 5,588 incarcerated individuals were under contract to companies, 
most of them small firms. These are generally the best-paid jobs in 
prisons and according to the letter of the law, are supposed to pay the 
legal minimum wage. For economist Tom Petersik, who has been studying 
prison labor for nearly two decades, these workers who do jobs 
resembling production work on the streets, hold the key to resolving 
prison labor issues. He recommends applying the overall rules of the 
labor market to this cohort but not to all workers in prison. Moreover, 
he further cautioned in correspondence with Truthout that the Amendment 
only applies to people who have been convicted, exempting those awaiting 
trial, but also opening the door to applying the clause to individuals 
who have completed prison or jail terms.

Two other categories of work occupy the vast majority of those employed 
in prison. According to Sawyer, about 6 percent of people in prison 
produce goods and services for government entities. This ranges from the 
stereotypical license-plate-making to building communications boxes for 
the Department of Defense to producing mattresses or uniforms for 
prisons. Several states along with the Federal government have separate 
entities that oversee these enterprises. The federal government's prison 
industrial overseer, Federal Prison Industries, Inc., (also known as 
UNICOR) reports 
<https://www.unicor.gov/publications/reports/FY2015_AnnualMgmtReport.pdf> that 
its largest single production item in 2015 was office furniture, most of 
which went to government buildings.

While much prison labor may be akin to factory work outside prison, a 
significant portion of prison workers are engaged in agriculture. Prison 
farms, highly reminiscent of plantations from the chattel slavery days, 
complete with armed guards on horseback, are mostly located in the 
South. Prisons like Mississippi's Parchman Farms (made famous in a song 
<https://www.youtube.com/watch?v=jM23S12LXaE> by blues legend Bukka 
White) and Angola in Louisiana have gained notoriety for oppressive 
conditions in agricultural fields. Holman in Alabama, the focal point of 
the Free Alabama Movement, also has considerable agricultural 
production. While most of this produce ends up being consumed in prison 
dining halls, more recently stricter immigration laws that reduced the 
flow of migrant farm laborers have led to the deployment 
<http://www.takepart.com/article/2014/04/14/prison-ag-labor> of people 
in prison in Georgia and Idaho to harvest crops for commercial farms.

Though precise figures are difficult to find, likely about half of the 
1.3 million incarcerated workers do labor that maintains prison 
institutions themselves. This includes cleaning, cooking, general 
maintenance and a variety of office tasks. These are the most poorly 
paid jobs. Without this labor, prisons could not function. As Crispino 
points out, if Departments of Corrections had to pay these workers a 
minimum wage with basic benefits, they would go broke in a hurry. Yet, 
as Sawyer notes, few of these jobs really amount to serious employment. 
They might involve sweeping floors for an hour a day or serving food for 
a couple of hours. Even for those who do work, the days are far from full.

Moreover, Hamilton stresses that rather than physically grueling labor 
routines, the "real harm" lying in these jobs is that the "prisoner's 
sense of self and sense of possession become alienated from his or her 
work capacity. That's what's really at stake here."

Lastly, there is an entire layer of people in prison who do not work at 
all. This includes the roughly 90,000 
<http://solitarywatch.com/facts/faq/> people in solitary confinement, 
virtually all of the nation's political prisoners, as well as those who 
are disabled or beyond working age. Former political prisoner Cisco 
Torres sees mobilization around eliminating the exclusion clause as 
viable but thinks political energy could be better spent on issues like 
sentencing or reducing financing for local police. He fears that even if 
the exclusion clause is removed, "they will come up with different 
methods of incarceration."

Additionally, Torres stresses that decarceration without allocating 
additional resources to oppressed communities condemns people released 
from prison to live at the absolute margins of survival. "Even if we let 
them go, where do these people go?" he says. His views also highlight 
the fact that amending the 13th could lead to some relief for people in 
prison but may do very little for the millions of loved ones of 
incarcerated people, overwhelmingly women and children, who have also 
been critically impacted by mass incarceration. For the moment, Torres 
favors mobilizing behind "tangible goals," like the treatment of 
incarcerated people or the recognition of political prisoners. For him, 
the central problem is "American capitalism and how we fight it," not 
merely amending the Constitution.

Hamilton agrees with Torres' assessment: "Such a demand may be a great 
way to raise awareness about interlinked systems of marginalization, 
policing and imprisonment, but it would not prevent imprisonment from 
being the primary mode of state-inflicted punishment. Not one prisoner 
would go free."

*Linking the 13th Amendment to Other Issues*

Despite the complexity of assessing its impact, building a movement to 
abolish the exclusion clause would be a major step in changing public 
attitudes about incarcerated people. Moreover, the broadening of the 
demands to include the elimination of immigration detention quotas 
acknowledges that forced labor is a carceral reality well beyond the 
boundaries of the plantation-style farms of Holman and Parchman.

In addition, as Mallah has stressed, it would reshape consciousness and 
relations at the coalface of prison yard relations. He regards the march 
and the focus on the 13th as an effort to capture the "synergy of both 
national coalition and local" efforts as a key moment in the search to 
find the balance between marching, advocacy and education that is 
central to building a movement to end mass incarceration.

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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