To many who study inmate labor they "find" that such labor is concentrated in those industries where vigorous physical activity is accompanied by low-skill requirements because those sectors could utilize inmate labor more effectively. They also find nonetheless, advantages of using prison labor also causes it to compete directly with free labor, which lead to the cessation of prison labor early in the 20th century.
When prison goods were introduced into the market in the 1920's, wages decreased, prices dropped, and unemployment climbed. While it was protests about free labor to/by manufacturers that eventually led to the loss of prison labor during the huge recession of the Great Depression, the record unemployment levels ultimately led to the abolition of private sector involvement in prison industry.
Today I see the same variables around and within our society. Once again prison labor is contributing to private sector job losses, decreasing wages and unemployment and now they're getting tax breaks for doing it!
(A warning from the author: if any of the links I provide to documents, reports or statements made by prison industry operators, or the NCIA or BJA are important to you, please copy those documents when you visit as I have discovered that once I use them, clicking on them afterward results in many being "broken" or unavailable from the servers where they were stored - wonder why?)
While I agree with some of the findings of those scholars who have studied the impact upon private manufacturing and market sales by prison labor, I must completely disagree with their statements that research indicated that prison work is primarily filled by low-skilled inmates who perform "vigorous physical duties". This is simply not as true today as it was in the time of the Great Depression.
In the '20's the bulk of prisoners were comprised of mostly men from lower class white communities or blacks who were still being exploited more than 50 years after abolition of slavery. White collar workers and the upper-class citizens were not arrested or imprisoned as they are today. The multiple changes to drug and criminal laws over the past 30 years in the U.S. have changed the landscape of prison's inmate types.
Drug laws have eliminated the ability of upper-class, educated, influential and affluent members of our society to avoid arrest and imprisonment. I believe the changes in laws and prosecution have been implemented by some with deliberate intentions of sweeping up better educated individuals from all walks of life and with a wider variety of skill sets. This has helped more than most other reasons to widen the gap between the middle and upper classes within the U.S. Whether it was done deliberately to access the education and skills of those men and women from the upper echelon of the middle class, I can't attest to with any authority. My research is just not that precise.
However the fact that most of the changes to existing laws, enactment of new laws and the changes that require minimum sentence served to be 85%, minimum mandatory gun and drug sentences, truth in sentencing and the 3 strike laws were all brought about (and admitted to) by the American Legislative Exchange Council (ALEC) I believe the intention was to increase prison populations. to do that it was necessary to include more from those upper classes. I assert it was deliberate - without actual research because we know this to be true from current policy changes overseas where ALEC has expanded their influence. They are now impacting upon UK, Germany, Australia and New Zealand. Their corporate members CCA and Geo Group now own/operate private prison facilities in all of those countries and the conservative political parties or politicians in those countries are now pushing for the same legislation there: 3 strike laws, truth in sentencing, etc. So we have the laws, ALEC and the two major private prison contractors all expanding their operations to several foreign countries in the same way and manner as they did in the U.S. - that led us to mass incarceration and huge profits for them. Incarceration and longer sentences are in store for all those countries if they follow in our footsteps. 20 years from now they'll be in the same situation we face today with incarceration.
As I said above, in the midst of the depression of the '20's manufacturers within the community began to complain - loudly - about unfair competition from other manufacturers that used cheap prison labor to under-price products similar to those offered by the private sector. In response to this our Congress enacted several laws restricting the sale and distribution of prisoner made goods.
Beginning in 1929 with the Hawes-Cooper Act, there were a series of federal laws passed prohibiting private sector involvement in the production of prison made goods so that public/private alliances in prisons had disappeared by the start of World War II. The following are a list of these laws:
The 1929 Hawes-Cooper Act ―mandated that prison-made goods transported from one state to another be subject to the laws of the destination state.
The 1935 Ashurst-Sumners Act ― made shipping prisoner-made goods to a state where state law prohibited the receipt, possession, sale or use of such goods a federal offense.
The 1936 Walsh-Healy Act banned convict labor on federal procurement contracts in the ―manufacture…production or furnishing of any materials, supplies, articles, or equipment used in government contracts where the amount thereof exceeds $10,000.
In 1940 Ashurst-Sumners Act ― was amended to make it a federal crime to knowingly transport convict-made goods in interstate commerce for private use, regardless of laws in the states.
The 1973 Executive Order 11755 restricted the purchase of inmate-made tools by the federal government (Reynolds, 1996).
After the 1978 Pontiac, Illinois prison riot, Senator Charles Percy (R-Ill) sponsored a bill to create the Prison Industry Enhancement Act, Section 827 of the Justice System Improvement Act of 1979. Senator Percy stated his concerns with the corrections system as follows:
The shopping list of problems and deficiencies in our prison system is long and well known. Overcrowding, old and obsolete facilities, lack of training or educational programs, crime within prison walls, frustration on the part of guards and inmates are all a part of the dreary picture… Recidivism is now a substantial element in our overall crime rate, and prisons are often accurately characterized as a 'school for crime,‘ rather than a deterrent to crime…125 Cong. Rec. S11834 (1979) (Bureau of Justice Assistance, 1999)."
This bill, and subsequent amendments, created what is known as the Prison Industry Enhancement Certificate Program (PIECP). The 1979 Prison Industry Enhancement Act allows exemptions of Federal restrictions on the marketability of prisoner-made goods, among them the Ashurst-Sumners and the Walsh-Healey Acts for 7 pilot projects (Bureau of Justice Statistics, 1999). The 1984 Justice Assistance Act expanded PIE from seven to twenty projects (Bureau of Justice Assistance, 1999). In 1990 The Crime Control Act raised the number of PIE pilot projects to 50 (Bureau of Justice Assistance, 1999). In 1999 the laws on prison labor was complete with the issuance of the 1999 PIECP Final Guidelines.
Moreover, the note added at the end of this law, although not codified, is enforced as part of the actual law and states that:
"Pub. L. 90–351, title I, § 819(c), formerly § 827(c), as added Pub. L. 96–157, § 2, Dec. 27, 1979, 93 Stat. 1215, renumbered and amended Pub. L. 98–473, title II, § 609B(f), (o), Oct. 12, 1984, 98 Stat. 2093, 2096, provided that: ―The provisions of section 1761 of title 18, United States Code, and of the first section of the Act of June 30, 1936 (49 Stat. 2036; 41 U.S.C. 35), commonly known as the WalshHealey Act, creating exemptions to Federal restrictions on marketability of prison-made goods, as amended from time to time, shall not apply unless—―(1) representatives of local union central bodies or similar labor union organizations have been consulted prior to the initiation of any project qualifying of any exemption created by this section; and (2) such paid inmate employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services.(Cornell University Legal Information Institute, 2008)."
Curiously political leaning has an impact upon whether or not a particular state participates in PIECP or not. In their research, Gallagher and Edwards (1997) attempted to explain the likelihood that a state would participate in the PIE program using data from 1985-1992. They found that:
"...states with stronger union membership, democratic governors, and high unemployment rates will be less likely to allow PIE projects" (p. 97, Ibid).
"However, states with a rehabilitative view of prisons would be more likely to participate in PIE."
This basis for these findings more or less mirrors our environment, political and employment situation of today, wouldn't you say? As in 1929 we're again faced with high unemployment, large influential union memberships, and conservative Republicants enabling corporate interests in pursuing more and more profits from inmate labor and in addition, the U.S. is facing strong manufacturing and retail competition from overseas.
The National Correctional Industries Association (NCIA) highlights several benefits of the program to society. For example, the program offers:
- Corrections administrators: A cost-effective way to reduce idleness and productively occupy a portion of the ever-growing correctional population.
- Crime Victims: The program provides a means of partial repayment for Harm.
- The private sector: The program provides a stable and readily available workforce. In addition, many correctional agencies provide low cost Manufacturing space to private sector companies involved in the program.
- The public: Because of inmate worker contributions to room and board, family support, victim compensation and taxes, the program provides a way to reduce escalating cost of crime.
- Inmates: The program offers a chance to work, meet financial obligations, increase job skills, and increase the likelihood of meaningful employment on release from incarceration. (NCIA, 2006 )
Okay...this is all propaganda and deliberate disinformation distributed by those using and profiting from prison labor and unfair competition with their private sector competitors to try and convince us that somehow all of the benefits of the program are for he inmate.
First off how can an inmate "meet financial obligations" when his/her pay is reduced improperly? Matching tax deductions and deposits to SS are reduced (representing another savings to the prison industry operators). In addition if the inmate has court ordered restitution it would take many years for an inmate to pay that off at the rate of 15% taken from minimum wage scale. Secondly "reducing the cost of crime" isn't where the money goes in Florida, how can we believe it is used for that purpose elsewhere?
I've clearly shown - by factual state law in Florida (946.522) that the money deducted for room and board (to date nearly $4 million dollars) has been taken from the inmates and placed back into the hands of the prison industry PIECP participant, PRIDE.
With regard to "prevailing wages" Companies participating in this program have to pay prisoners the prevailing local wage for similar labor but never less than the minimum wage (Auerbach, Summary Findings of the 2000-2001 PIECP Compliance Assessments). Auerbach is the PIECP Technical Coordinator for the NCIA and in that capacity writes all of the assessment reports conducted by the that "association" and submitted to the BJA. She personally participates in on-site and desk assessments for compliance and has done so for a number of years going back to 2001.
Here is a section of her 2006-08 PIECP Assessment Report to the BJA:
2. Inmate Worker Wages
The PIECP statute requires that inmate workers be paid "at a rate which is not less than that paid for work of a similar nature in the locality in which the work is performed." BJA's administrative Guideline for PIECP sets out procedures for determining the appropriate wage under various conditions. The Guideline expressly states that wage determinations must be made by State Department of Economic Security (DES) agencies. Certificate Holders must re-determine wages annually on or before the date
the previous wage update was made. In November 2006, BJA further pecified that because of an “across-the-board change in how wage data is reported by employment agencies…wages for PIECP inmate workers may not fall below the tenth percentile (unless their employment agency provides express written agreement of a wage less than the tenth percentile for a limited training period).
”Findings:
Again this cycle, wages were the single most difficult requirement for PIECP Certificate Holders to implement. NCIA requested two separate payrolls for each CAC it assessed (September and March for each cycle), thus providing the assessors with a more complete picture of wage practices over time. Six of the twenty-eight jurisdictions assessed had wage issues of some kind, considerably less than in the previous assessment cycle. However, most of the wage issues were significant. Four remain unresolved as of this writing. Of these, three are serious enough to involve the potential payment of back wages.
a. Misunderstanding of BJA’s 10th Percentile Requirement
Confusion about how wages should be set for PIECP inmate workers continues to be a problem for many PIECP managers. As noted above, because wage data for all states had become available electronically, BJA determined in 2006 that wages must be set at or above the 10th percentile, as defined by the State Department of Economic Security Agency. BJA defines this as a “generous interpretation of comparable, and yet still fair to competitor manufacturers because of the “lack of education, training, and experience
typical of the inmate labor force.”
There does not appear to be widespread understanding that the 10th percentile is the minimum entry level wage set by BJA, with the exception of reasonable training periods at a wage somewhere between the Federal or State minimum wage and the 10th percentile. Even though BJA notified its certificate holders of this fact in 2006, some jurisdictions continue to operate under the impression that wages cannot fall below the Federal minimum wage, and that the 10th percentile may be seen as a long range goal. Many have gained the approval of their State DES agencies (which apparently remain unaware of BJA’s 10th percentile requirements) for this practice. Thus a situation now exists whereby in many jurisdictions wages range from the minimum wage to the 10th percentile and this practice is approved by their State DES agencies.
In a few states, the DES agency does not present its data using the 10th percentile format at all. Rather, they use “entry and median,” or “mean, median, and mid-range” data. As a result, it is difficult to determine whether BJA’s 10th percentile requirement is being met or not. CACs may be paying wages higher than BJA’s requirement, or they may be paying less.
In two jurisdictions PIECP managers had made independent decisions to overrule DES wage determinations for certain CACs and allow their private sector partners to pay a lesser wage, out of concern that the partners could not afford the wages identified by the State DES agency and might abandon the program if forced to do so. One of those jurisdictions is in the process of calculating and paying back wages; the other is still
under discussion as of this writing. A third state had misunderstood BJA’s requirement and has since requested, received, and implemented 10th percentile wages."
So in the 06-08 period some prison industries participating in PIECP had "significant" wage issues. How about deductions taken from inmate pay?
"5. Deductions
Federal law provides that "wages may be subject to deductions which shall not, in the aggregate, exceed 80 per centum of gross wages, and shall be limited as follows: (a) taxes; (b) reasonable charges for room and board as determined by regulations which 9shall be issued by the chief State correctional officer; (c) allocations for support of family pursuant to State statute, court order, or agreement by the offender; (d) ontributions toany fund established by law to compensate the victims of crime of not more than 20 per centum but not less than 5 per centum of gross wages." BJA's 1999 administrative Guideline makes it clear that participating CACs are not required to take deductions from PIECP inmate wages. However, some deductions may be required under other Federal statutes, such as the Internal Revenue Code.
"Findings:
Two jurisdictions were found to be deducting from the inmates’ gross pay for items other than the four deductions allowed under the PIECP statute. In both cases the Certificate Holder agreed to make the necessary adjustments. No other deductions issues were found."
How can it be in that capacity as the "Technical Coordinator" Ms. Auerbach can insist that inmate workers must be paid prevailing wages on the one hand, and find program participants in "compliance" by the paying the minimum wage or less to the inmate workers instead and how can deduction violations occur, on the other hand? I mean both of those issues and the law is clear and specific. An Honorable Mention in each of Ms. Auerbach's assessment reports over the past decade has contained an indication that the NCIA is not being paid enough by the BJA grant to actually perform assessment on all participating Certificate holder operations. Time and again she makes this argument, suggesting that if only the NCIA were paid more tax dollars, then they would be able to properly assess more of the prison industry operations for compliance. However I argue, to what end? If all you're going to do is expose the non-compliance, talk about it and say you're bringing the violator into compliance, what is actually being done for those grant dollars? Every assessment review reveals the same issues with non-compliance in the area of wages. Every assessment has the same report - and historically nothing is done to really eliminate the violations or prevent them from occurring.
Of course if it is profitable for prison industries to underpay their inmate workers...and if by doing so they attract more and more private corporations to use inmate labor, they are in no hurry to comply with prevailing wage requirements. Indeed, in most of Auerbach's assessment reports she states that industries simply argue if they must pay proper wages, some of their "partners" will withdraw from the program.I say enforce the program's requirements and if private manufacturers want to pull out, let them. In the meantime how about we prosecute those who have taken so much from us in private sector jobs? How about a fine as required by 18 USC 1761(a) for each violation (every product shipped across state lines)? A two year prison sentence for each individual who helped or assisted in enabling the violations to occur?
Neither the NCIA or the BJA pursue such violations with criminal prosecutions called for under 18 USC 1761(a)(c)and (c)(2). I really believe the failure to enforce or prosecute is due to the profits made and the large corporations using the inmate labor force. These corporate interests have a huge amount of influence - and are also involved with partnering with the Federal Prison Industries (UNICOR) in using prison labor. The BJA and NCIA simply refuse to "bite the hand that feeds them." And to sell us their goods, they depend upon "facts" and reports submitted by scholars and others paid by the BJA. I assert these studies are skewed to make us believe the BJA is properly running this important program, and to deny that PIECP is actually being used to eliminate private sector jobs through the use of inmate workers.
Other studies performed by scholars and authors researching PIECP and prison labor - also funded by the BJA - determined that minimum wage is considered the "standard" wage paid in PIECP operating industries. In 2001 PIE wages were typically set at the Federal minimum wage ($5.15 per hour) (Auerbach 2001, supra). In a sample of State PIE programs and employers, Petersik, Nayak, and Foreman (2003) found the median average wage to be the Federal minimum wage of $5.15 per hour, the mean wage to be $5.35 per hour, and the maximum wage to be $8.50 per hour. Roughly 72 percent of the inmates sampled earned the federal minimum wage. Thus the prevailing wage requirement is nearly completely ignored for the majority of inmates receiving wages hovering around the federal minimum wage rate(s).
So there seems to actually be two sets of standards - like PRIDE's financial records in Florida. The BJA insists on prevailing wages, Auerbach offers the same insistence...yet the prison industries historically keep the inmate's wages to around the federal minimum wage rate and Auerbach continue to allow this substitution. When prison industries are too flagrant, the NCIA has 60-90 days to bring them into compliance. Even if they actually did this...it will be another 6 years or so before the industry that violated will be re-assessed for compliance.
Each PIECP program participant has statements upon their web pages informing visitors that by participating in this program, the inmate is exposed to training that closely replicates private sector operations. This is simply more BS...how many private sector companies deduct 40% of their workers pay and keep it to pay for business operations? How many private sector workers are allowed to underpay their entire workforce and continue to operate? How many private sector companies operate using equipment and technologies that are more than 20 years out of date or use? How many manufacturers outside of prison manipulate orders in a manner to assist them in mis-classifying orders to avoid paying true wages to the workers? No, if anything inmates are taught that if business on the outside is run like the business on the inside, they want no part of that once they exit prison. They have learned not to trust their employers or their supervisors.
Although there are many benefits to tapping into this idle labor force, there is a potential drawback to employing prison labor often overlooked: theoretically, it is possible that prison work programs could actually increase the level of crime in society. Prison labor may lower the monetary and psychic costs to imprisonment thereby increasing the supply of offenses. Moreover, if prisoners cannot find jobs with the skills they acquire upon release from prison, it is possible that the only place the inmate can earn a legitimate living is in prison, providing more incentive for the prisoner to be in prison rather than to integrate back into the community, thus perpetuating the cycle of recidivism (Cox, Robynn Joyce Afi, "An Economic Analysis of Prison Labor" (2009).
And this is exactly the circumstances faced by inmates released today. The jobs they have been trained for have mostly already gone to prison. Those jobs labor unions, labor groups and private manufacturers are fighting to keep in the private sector are dwindling as they lose the battle against Insourcing and Outsourcing. Consequently, with fewer jobs available, a large segment of our society unemployed, a former offender with skills learned in prison, has his/her resume and application placed at the bottom of a potential list of employees. This lack of availability to obtain employment defeats the purpose of PIECP training and only increases the potential for continued recidivism - through crimes committed against you and I as neighbors of the ex-offender.
It's all about the "money" as I've said time and again. The research, reports and annual assessments paid for with taxpayer grants through the BJA to Auerbach and a multitude of others that result in long winded dissertations filled with magic geometric and trig formulas and graphs depicting how the major benefit of this program is to the PIE worker himself/herself is bullshit. There's no other term to describe what these studies disseminate to the public. The findings are simply skewed to justify to you the need for using inmate labor in jobs that used to be yours. If it weren't about profits - why is it that in Florida, since the prison industries were turned over to PRIDE in 1981, inmate workers have received one raise? Yes the program has been in operation and paying inmates for 29 years and the workforce has received a total of one raise for standard non-PIECP work. The amount of that raise? Believe it or not...a nickel and hour. Yep, in '81-83 the wage for inmates were set at $.15 per hour to a top wage of $.45 per hour. Today that scale begins at $.20 and the top wage is $.50 an hour.
In both PIECP and non-PIECP work, the Florida inmates are deliberately underpaid. This underpaid workforce in that state, produced $74,000,000.00 in gross sales by PRIDE last year, working millions of man hours. Why don't the inmate workers complain? Because even at the $.20 pay scale, they earn and have more money than many of the other 102,000 Florida inmates. There are long waiting lists to get into the PRIDE industries for that reason. They don't want to complain and loose the only source of income they have - as little as it is. Isn't that pathetic? They're doing your jobs for next to nothing, and kept silent due to fear of termination if they complain.
There are other studies and reports compiled by state DOC's and other scholars that dispute the rhetoric being spewed out by the NCIA and others who are paid by the BJA to "study" inmate labor and PIECP. In fact some of the very studies performed by others partnering with the BJA have found inconclusive data to establish a substantial differential between rates of recidivism and employment for PIECP trained inmates and non-PIECP released offenders ("Factories Behind Fences: Do Prison ‘Real Work’ Programs Work?" At the end of 36 months the rates were not markedly changed and wage rates were not dissimilar for both groups.
A report completed by Cindy Smith, Ph.D. and Jennifer Bechtel titled "Correctional Industries preparing inmates for re-entry: Recidivism & post-release employment", 2005 under funding by the DOJ's Bureau of Justice Assistance and the National Institute of Justice found:
"1. Proportion of time employed during the follow-up period: is 60%.
- Time to first employment after release: PIECP participants obtain employment significantly faster.
- Duration of first employment: PIECP participants retain the 1st employment significantly longer
- Wage rate during the follow-up period: PIECP participants earn more wages and higher wages.
- Time from release to first arrest: There is no difference between the three groups.
- Time from release to first conviction: There is no difference between the three groups.
- Time from release to first incarceration: PIECP participants are re-incarcerated at a slower rate than OTW, but other recidivism comparisons do not differ."
So even when the studies are paid for by the BJA or NIJ, the findings show that there is no real reduction in arrests or recidivism between PIECP trained prisoners and non-PIECP trained prisoners after release. So what in the hell are all of us getting for our millions spent in paying for more and more incarceration? Private prison funding? Studies and research paid for with our damn money? Nothing in particular...just the ability of the PIECP program to continue to take more and more of our jobs for prison labor - so inmates can get out and re-offend - just like those not "trained" within the program.
In conclusion it is obvious to me that all the money dumped into this program to fund oversight, research and reports is done in an effort to disseminate false facts and conclusions. It is designed so that we pay for being lied to and our jobs can continue to disappear while we listen to the rhetoric by them that this is not true. All the money we pay for incarceration costs pays for housing, medical, food, and hygiene products to keep the prison industry workers healthy and working. Their work provides no return on the dollars we've invested - it only serves to fund more profits to both the industries and their corporate partners under PIECP and non-PIECP operations alike.
It's time for all of us to tell the BJA exactly how we feel about all of this manipulation, disinformation and our jobs being taken by state prisoners in a program run by them. Contact the Agency's Policy Advisor, Julius Dupree and let him know how you feel about PIECP and how he and the agency are operating the program. Want to take it a step further? Contact the person immediately above him, Victoria O'Brien - let her know your concerns about the program and lack of actual oversight. Until you add your voice to mine and others who have already complained, nothing will change and our jobs will continue to go to prison.