Because of the breaking news contained about prison labor written about below, if you, a friend, or loved one have ever been involved in a prison industry work program - or know of those who have - please contact me with information on how/where to contact them. They may be entitled to back wages from the prison industry.
This has been some December for prison labor issues. The strike or sit-in in Georgia by inmate workers in seven prisons has helped to focus attention on issues of humane treatment and wages for inmate workers. Protests of what amounts to penal slavery, and forfeiture of rights of prisoners by state prison authorities did not make it to the mainstream media. However, many liberal and progressive media outlets carried the story and word got out.
At the same time this prison labor strike was taking place other major events began to unfold in the concurrent prison wage battle being waged over the PIECP program.
On December 14th I received an email response from the BJAabout my numerous complaints of violations by prison industries regarding wages, deductions and the use of the NCIAas oversight over the PIE program. My complaints were originally against PRIDE but research developed, revealed instances of the same violations being committed by many other participating state prison industries. By 2009 my allegations to the BJA centered around the allowance of the NCIA to oversee a program that involved each member of that "Association" also being an employee, director or holder of other important and influential positions within the industries overseen. I asserted that because the actors also had roles of oversight, they were deliberately underpaying inmate workers and getting away with it to the tune of millions of dollars.
I complained that the NCIA was continuously finding all of the participating industries in compliance with PIECP laws in the face of documented violations that were going unchecked. All requests for investigations by myself to the BJA resulted in them being forwarded to the NCIA where they died. The email on December 14th meant all involved would be moving one step closer to a resolution.
The email came from the BJA Policy Advisor, Julius Dupree. The email advised that the BJA "assessment" into PRIDE of Florida (that was originally to have been completed and released by "the winter of 2009") was finally complete:
Mr. Sloan,
BJA has performed an assessment of the PRIDE CACs that you mentioned. You may submit a Freedom of Information Act request for the assessment results as soon as this information becomes available. We hope to have this assessment finalized during the early part of January 2011.
Julius Dupree
Julius C. Dupree, Jr.
Policy Advisor
U.S. Department of Justice
Bureau of Justice Assistance
810 7th Street, NW
Washington, DC 20531
202/514-1928 (ph)
202/307-0036 (fax)
julius.dupree@usdoj.gov
I also received an email from BJA personnel advising that once the report was completed and compiled they needed my mailing address, etc.
This information was satisfying in that the allegations I have been presenting to the BJA were finally going to be resolved. I had no idea at the time whether the report would concur with my findings or serve to once again be an attempt to vindicate PRIDE and the NCIA's responsibility for oversight of the program. I didn't have very long to wait before an indicator appeared - at the BJA site.
The day after I received the above notice, I was researching for this segment and revisited the BJA site's PIECP page. Right at the top was a "New" in bright red capital letters. That was followed by this: "Back Wage Policy for Inmate Workers Under the Prison Industry Enhancement Certification Program" Clicking on the link, I found this:
Back Wage Policy for Inmate Workers Under the Prison Industry Enhancement
Certification Program (PIECP)
Issued: December 2010
Background:
18 USC 1761 (c), the statute authorizing the Prison Industry Enhancement Certification Program (PIECP), states that PIECP inmates must “have, in connection with PIECP work, received wages at a rate which is not less than that paid for work of a similar nature in the locality in which the work was performed. The Bureau of Justice Assistance (BJA) 1999 PIECP Guideline gives the State wage setting agencies authority to make wage determinations for PIECP workers that are comparable to those in effect for similarly situated workers. When a compliance assessment reveals that the wages paid to PIECP inmate workers are less than the wages approved by the State wage setting agency (usually the Department of Economic Security or DES), BJA will work with the PIECP Certificate Holder to determine the extent of the back wages and amounts due, and to design a compliance plan to ensure the back wages are paid to the workers in question (where possible), or to an alternate recipient when reasonable efforts have failed to yield reliable information about the location of released former PIECP workers. Alternate recipients might include the inmate welfare fund, the victims’ ompensation fund to which PIECP victims’ deductions are usually sent, or any other organization proposed by the Certificate Holder and agreed upon by BJA.
Policy:
In determining appropriate back wage amounts, the Certificate Holder should calculate the difference per hour, between the DES approved wage amount and the actual wage amount paid to each PIECP worker. Back wages should be calculated for every payroll period falling within the period of non-compliance. The total amount of back wages which must be paid equals the cumulative unpaid wages for all of the payroll periods that fall within the non-compliance time frame.
Regardless of the Cost Accounting Center models in place within the Certificate Holder’s work pilot project, BJA holds the Certificate Holder as the entity ultimately responsible for complying with the PIECP wage requirements. The Certificate Holder and proposed recipient(s) must also agree upon the amount of back wages due. The back wage amounts must be paid within 90 days of the date when BJA approves of the Certificate Holder’s identified back wage amounts. If the Certificate Holder continues to operate in noncompliance, after being informed of instances of non-compliance with the PIECP wage requirements and the back wage policy, and refuses BJA proposed compliance plans, BJA will take action to terminate the Certificate Holder’s PIECP certification.
Further Information:
For further information on this policy, contact Julius Dupree at Julius.Dupree@usdoj.gov
or 202-514-1928.
Okay....that was an interesting "Notice" provided by the BJA that just happened to be issued the day after my being informed the investigation was complete. Could this have been a coincidence? I reread it again and realized...two very important facts suddenly jumped off the page; 1) the new policy more or less confirmed there had been some kind of wage non-compliance issues had been determined by the BJA and that it had apparently been an ongoing issue due to the need to locate released prisoners to pay them back wages, and; 2 there was absolutely no mention of the NCIA in this new non-compliance and back wages policy.
Prior to this policy being issued, the NCIA was used by the BJA to assess all compliance in PIECP by the prison industries. A week ago this is how the NCIA described their duties in the PIE Program:
"The National Correctional Industries Association (NCIA), the professional organization for prison industry employees, provides training and technical assistance for this program. Under a grant from BJA, the NCIA staff of volunteer correctional industry professionals assess program participants for compliance with program requirements and provide onsite and telephone technical assistance to programs that are not in compliance. NCIA provides additional technical assistance by:
• Responding to specific requests for substantive help from participating jurisdictions
• Providing program information to government agencies, private-sector companies, journalists, professional business and labor organizations, and others interested in the program
• Offering periodic training to program participants
• Helping to shape program policy through development of program guidelines, quarterly program data summaries, and other documents in response to program needs
The PIE Certification Program has two primary objectives:
• Generate products and services that enable prisoners to make a contribution to society, help offset the cost of their incarceration, compensate crime victims, and support their families
• Reduce prison idleness, increase inmate job skills, and improve the prospects for successful inmate tranition to the community on release.
Suddenly all reference to the NCIA's compliance reviews and responsibility for enforcing compliance on behalf of the BJA are left out of an important new policy issued by the BJA. So I went out to the NCIA site yesterday and found the duties of the NCIA in PIECP had changed - subtly:
"In addition, NCIA administers the Training and Technical Assistance Project of the Private Sector/Prison Industry Enhancement Certification Program (PIECP) for the U.S. Department of Justice, Bureau of Justice Assistance. Activities under the PIECP grant program include: conducting reviews of PIECP programs and cost accounting center; providing technical support to PIECP applicants and programs via electronic means and our website."
As I said, a subtle change from what was said last week. The information didn't change on the PIECP Program description web page - just on the "Who Are We" link.
Going back to the BJA site I also found changes on their "Prison Industry Enhancement Certification Program (PIECP)" page:
"Under the Prison Industry Enhancement Certification Program (PIECP), the Bureau of Justice Assistance (BJA) certifies that local or state prison industry programs meet all the necessary requirements to be exempt from federal restrictions on prisoner-made goods in interstate commerce. The program places inmates in realistic work environments, pays them prevailing wages, and gives them a chance to develop marketable skills that will increase their potential for rehabilitation and meaningful employment on release.
"The technical assistance provider under PIECP, the National Correctional Industries Association, works with the public and private sectors to provide the latest information and strategies on prison industries and to enhance certificate holders' prison industry programs.
"Currently, 37 state and 4 county-based certified correctional industry programs operate in the United States, and these programs manage at least 175 business partnerships with private industry. As of September 30, 2005, PIECP generated more than $33 million for victims' programs, $21 million for inmate family support, $97.5 million for correctional institution room and board costs, and $46.6 million in state and federal taxes.
Legislation: PIECP originally was authorized under the Justice System Improvement Act of 1979 (Public Law 96-157, Sec. 827). The Crime Control Act of 1990 (Public Law 101-647) authorizes continuation of the program indefinitely.
Funding: No funding is provided under this program.
As Scooby would say..."rut roh!" Something was definitely happening in the relationship between PIECP, BJA and the NCIA. It had changed recently and those changes were being reflected at both the NCIA and BJA site. The BJA statement that no funding is provided under this program is a recent determination. As of September 30 of this year, a grant had been issued by the BJA to the NCIA in the amount of $200,000.00 (for FY 2010). Does that mean the NCIA already received and used their grant? Will they have to return some of that grant money now that they are no longer responsible for "compliance" determination and enforcement? I'll have to wait on the actual report to see.
Taking all of this into consideration, it appears the new back wage policy contradicts the annual "compliance assessments" performed by the NCIA and submitted to the BJA. If a need for issuing such a back wage policy exists, it stands to reason there had to have been an occurrence(s) of non-compliance and if so, the NCIA either didn't catch it - or condoned it as I have been alleging for seven years now.
In either case, the status quo of complaints versus investigation has definitely changed. IF...and I stress the IF...the paying of minimum wages by as many as 38 of the 42 participating state prison industries is verified, then most inmates in the program have been cheated out of a huge amount of money
How huge? Well, here's some simple math. A conservative estimate that inmates in the program who were paid minimum wages instead of prevailing wages were underpaid by as much as 150% in some cases (a welder on the street is paid $22.00 an hour. The same job performed by an inmate in PIECP is paid at $7.25 per hour) and as little as 50% in other cases (a clerical position on the street pays $11.50 per hour and an inmate is paid $7.25 an hour for the same work). To possibly err on the conservative side, let's say they were all underpaid by an average of 50%.
To date, inmates working in the PIECP program have received a total of $537,592,584.00 in gross wages. Over half a billion dollars! Using the above formula, the inmate workers were potentially underpaid by as much as $268,796,292.00! Since the PIECP room and board deductions taken from the inmates wages average out to be 40% (in Florida and many other states) that means the state taxpayers lost up to $107,518,517.00 in offset funding for the costs of incarceration. That is one hell of a lot of tax dollars. Where'd they go?
The full amount of unpaid wages due was retained by the prison industries and their private sector corporate partners as profits. This is exactly why it is so attractive to manufacturers and corporations and why they choose to terminate civilian workers and move entire production and service operations to prison - cheap labor. This is the root of civilian job losses in the U.S. Outsourcing far out-paces Insourcing as a reason for lost jobs, but there can be no doubt that prison labor is a big contributor. The profits from; underpaying the workers, little or no lease costs for large facilities, little or no utility costs, no paid vacations, no paid leave or time off, no health, medical, unemployment or life insurance premiums - and a labor pool with no voice nor public or private support - is a tremendous amount of money.
The BJA has taken the position that:
"Regardless of the Cost Accounting Center models in place within the Certificate Holder’s work pilot project, BJA holds the Certificate Holder as the entity ultimately responsible for complying with the PIECP wage requirements."
Does anyone find it surprising that the government agency responsible for oversight, enforcing compliance and operation of a program involving corporate interests - would hold those corporations "harmless" in the violations? Surprised that the full burden of paying back wages falls to the state actors and mot the corporations that converted those withheld wages to - and shared in - the profits?
I am certainly not surprised. This one single determination - laying the responsibility and blame at the feet of the prison industry Certificate Holder instead of where it belongs at the doorstep of the corporations that made the damn money - shows the influence wielded by corporate interests within our own government agencies. Sure, the state Certificate holder should know better; they signed documents agreeing to all the compliance requirements and the contracts issued through them, but in every one of their contracts with corporate partners they laid out the terms and conditions along with the mandatory requirements of program participation. Corporate actors were aware of the requirements going in, made money by underpaying the workers and get a free ride when the stuff hits the fan? Truly remarkable how they continue to slide again and again when it comes to prison labor.
A visit to this pageat the NCIA will allow you to read and review all of the PIECP forms used in the program. The PIECP Forms are listed below:
PIECP Certification Application – Microsoft Word Document
PIECP Certification Application - Adobe Acrobat PDF
CAC Designation Form & Request for Categorical Exclusion – Microsoft Word Document
CAC Designation Form & Request for Categorical Exclusion – Adobe Acrobat PDF
CAC Undesignation Notification
NEPA – Environmental Assessment Information
PIE CAC Quarterly Statistical Report Form
Cert Holder Quarterly Consolidated Report Form
Of important note, the PIECP Certification Application clearly lists the mandatory requirements and includes sample letters to be sent to all interested parties, unions, state OES agencies and notices of the proposed start-up of a PIECP industry.
Everyone involved knows going in what the requirements are, what the consequences of violations are and that non-compliance can result in the BJA rescinding the PIECP Certificate.
What isn't included - and may have caused all of this to begin with - is the deliberately undisclosed fact that in cases of non-compliance violations, the federal statute calls for a substantial fine and/or two years of imprisonment in a federal penitentiary upon conviction! Here is the pertinent subsection to 18 USC 1761:
"(a) Whoever knowingly transports in interstate commerce or from
any foreign country into the United States any goods, wares, or
merchandise manufactured, produced, or mined, wholly or in part by
convicts or prisoners, except convicts or prisoners on parole,
supervised release, or probation, or in any penal or reformatory
institution, shall be fined under this title or imprisoned not more
than two years, or both."
The clause "...except convicts or prisoners...in any penal or reformatory institution..." is applicable when those inmates are working in an authorized PIECP operation, where all of the mandatory criteria are met - including the payment of prevailing wages. If the inmates are working within the program and are not being paid the mandatory wages, the shipment of any product made by them across state lines is a federal felony - for each individual product shipped.
To date I can find no case where anyone who violated the PIECP mandatory requirements were ever charged, prosecuted or convicted for a violation. Instead, the BJA takes steps to bring the violator into compliance. If that is not possible, they simply decertify the industry and life goes on. No charges are brought, no prosecution or other consequence paid for their illegal actions. Though the 1999 PIECP final Guidelines clearly informs participants that failure to abide by the laws pertaining to PIECP will result in federal prosecution:
"' The Justice System Improvement Act of 1979 added these provisions which became Sec. 827(c) of the Omnibus Crime Control and Safe Streets Act of 1968. See Pub. L. 96-157, 93 Stat. 1215, reprinted in 1979 U.S.C.C.A.N. 2471. In 1984, Sec. 827(c) was redesignated Sec. 819 of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. See Pub. L. 98-473, 98 Stat. 2093. If all eligibility requirements are met and an applicant acquires BJA certification, the agency is thereafter authorized to operate irrespective of Federal prohibitions on the marketing of state prisoner-made goods. Conversely, noncompliance with these statutory eligibility requirements could expose an industry to criminal prosecution under the Ashurst-Sumners Act. Title 18 U.S.C. 1761(a)."
Last week I addressed this discrepancy with the Department of Justice via an email query. Here is part of what I wrote in that communication:
"Additionally, the latest PIECP Assessment completed for 2009 by the NCIA is available at the NCIA site. The NCIA Technical Coordinator went to great length in her report to establish that the BJA only serves as the “Program Arm” of PIECP and warns that violations are federal offenses and must be prosecuted by the USDOJ’s Criminal Division. I did just that on more than one occasion since 2003, with the complaints being forwarded by the USDOJCD to BJA. From there they were sent on to the NCIA and disappeared. No formal investigation was ever undertaken based upon my documented complaints. This allowed PRIDE and others to continue violating PIECP laws for an additional 7 years now and counting.
Ms. Auerbach was personally contacted by myself in 2004, 2005 and 2006 about the continued policy of paying minimum wages instead of prevailing wages by PRIDE and others. Did she not have a duty to report those allegations to the USDOJCD? Now, in the 2009 assessment report she says the BJA lacks the authority to prosecute and its sole recourse in cases of violation is to bring the violator into compliance or rescind their certification. In the same report she states they were only able to do 17 “desk assessments” of the more 42 participating industries due to a lack of funding from the BJA. Of those 17, 6 were found to have been in violation by paying improper wages. One violation involved the “interplay between state and federal laws” involving PIECP. I believe this was Florida, in that their state statutes allow for paying of minimum wages and diverting room and board deductions from wages to the corporation instead of the FDOC. This amounts to $4 million in wage deductions used by PRIDE to fund their operations.
I complained that PRIDE has been paying minimum wages or less in place of “prevailing wages” to their inmate PIECP workforce for more than 10 years now. In those complaints I provided copies of inmate pay statements, excerpts from the PRIDE Board meeting minutes that clearly stated they pay minimum wages to all inmates working in PIECP, but none of that elicited any response or request for further documents. I believe this recent release by Dupree that coincides with his agency’s preparing to release an investigative report performed in response to my numerous complaints and documentation may serve as a precursor to what the BJA found.
A question I’ve had for some time needs answering; If shipping products across state lines without complying fully with the PIECP law – 18 USC 1761(c) – is a federal felony for each product shipped out of the state, shouldn’t the individual or agency that discovers the criminal acts be required to report the crimes to the appropriate authority? I mean a felony violation under other circumstances is never addressed by allowing the perpetrator(s) to remain at large to possibly continue committing more of the same. Simply because those who committed the criminal acts were acting under color of state or federal law should not serve as an excuse or shield them from prosecution. Simply going back and correcting the violation by paying those they stole from in the absence of a court determination should not absolve the perpetrators from the commission of criminal acts. The punishment provided for violations of 18 USC 1761(c) are clearly provided within the statute. If Congress intended for violations to be dealt with by forced compliance, the statute would have included that option instead of calling for imprisonment and/or a fine upon conviction…so why is that provision not enforced by the USDOJ? Why are violators not prosecuted as they are for violating other federal statutes? Is it possible that the USDOJ, OJP and BJA have an unwritten policy of not prosecuting anyone associated with state prison industry operations found committing these defined felonies?
The laws normally require arrest, and prosecution. At least that’s how it’s worked in all other cases, isn’t it? All PIECP participating prison officials and their corporate partners know the mandatory laws involved, certify to the government that they are in compliance – and will remain in compliance – and are aware of the consequences for violating the federal law. How is it they get a free ride when they’re caught? Especially when they have been in non-compliance virtually from the very beginning of their participation in the program?"
So it is against federal laws to ship prison made products across state lines in interstate commerce unless the shipping prison industry and their corporate partners are in full compliance of 18 USC 1761(c) and the sub-chapters of that statute. Violations called for by the statute is a fine and/or imprisonment for two (2) years in a federal prison facility. There have been numerous and continued violations resulting in non-compliance, yet none of the violating individuals, industries or private sector PIECP partners have been prosecuted for those violations. Though there is no provision for "returning a participating industry to compliance" in lieu of imprisonment or fine, the BJA has chosen this method of solution - instead of prosecution.
This failure to prosecute coupled with the vast money realized by prison industries and corporate interests partnered with them under PIECP is exactly why more and more prison industries are being sought out by corporations wanting to enrich themselves by using inmates as slave labor. How many of us would be willing to walk into a bank and grab the money from the teller and walk out, if we knew there would be no arrest or prosecution due to our actions? Many would shrug and simply think "why not? There's no chance I'll go to jail and all I have to do is promise to not do it again, and I'm good to go....and if I do commit the same offense again, they will just tell me to promise not to do it again."
In this case billion$ of dollars have been made off of inmate labor - without bothering to comply with the program requirements because: 1) there is no real penalty for not following the statute and; 2) use of prisoners as a labor force does not require benefits, fair wages, medical or other insurance premiums, and most importantly; 3) the program is being overseen for compliance by the industries committing the criminal acts!
We'll have to wait and see what the investigation report conducted by the BJA reveals when it is released next month. I'm certain that the violations by PRIDE and the complicity of the NCIA have been identified. But, I'm just as certain from the wording of the Back Wage Policy issued by the BJA last week, that efforts are going to be made to again, prosecute no one for their acts. The Policy specifically absolves corporations involved from responsibility and in lieu of prosecution, violations will still be handled by "bringing violating participants into compliance"...so they can do it again and again and again...
In conclusion let's keep in mind that there are currently 2.3 million of us housed in state and private prison facilities. Many of those incarcerated individuals did far less than these prison industries and corporations, to get sent to prison. Isn't it time we put those profiteers in the same place?