I have written at length about PIECP - the purpose of the program, who is authorized to participate, how many prison industries violate the program's mandatory requirements - and how these violations and a lack of actual oversight is allowing corporations in the program to take more and more of our jobs.
In this segment I'm going to compare the statutes enacted in two states - Florida and Indiana - that each state says comports with 18 USC 1761(c). After reviewing these state laws against PIECP laws, I'm going to introduce you to those within our federal government whose job it is to protect your jobs through oversight and compliance reviews - and how they fail miserably.
We've talked about SB 1070 in Arizona and how the corporate interests involved in prison industries and the Prison Industrial Complex (PIC) were responsible for that legislation. We've also exposed those corporations beside CCA and Geo Group who are capitalizing off of privatized prison operations and associated prison industries. And...we've looked at the federal Prison Industry Enhancement Certification Program (PIECP or PIE Program) and how it is being used by those corporate interests to take your jobs away and give them to inmates in state and federal prison industries.
We now know who and what the NCIA is and how they enable those who would continue to take your jobs and put them in prison and now we're going to look at the Bureau of Justice Assistance (BJA) and their role in further enabling corporate interests in their pursuit of taking and keeping your jobs.
The BJA is the federal agency chosen as the "program arm" of PIECP. As I previously wrote, the BJA has outsourced their duties to the NCIA. The NCIA performs annual assessments of the program and participant compliance. Though these assessments are called for on an annual basis, the NCIA's PIECP Technical Coordinator, Barbara J. Auerbach claims that reductions in the grant funding from the BJA over the past few years has caused a reduction in both the number and type of actual assessment reviews now being conducted by the NCIA.
In April of this year the NCIA finally released it's "SUMMARY FINDINGS OF THE 2009 PIECP COMPLIANCE DESK ASSESSMENTS". Of the 42 participating prison industry certificate holders (these certificate holders operate more than 200 separate industries!), the NCIA claims that they were only able to perform "Desk Assessments" of the top 17 of those 200 industries for compliance review. This represents less than 9% of all industries operating within the PIE Program. Desk assessments are reviews performed by going over documents previously submitted to the NCIA by the certificate holders. So for 2009's compliance review the NCIA reviewed 17 out of more than 200 prison industry operations - and none of the reviews included an on-site evaluation. They simply looked over the documents submitted by those chosen and concluded their review. For this "service" the NCIA receives $250,000.00 per year under a BJA grant!.
Of course only six minor non-compliance violations were found by Ms. Auerbach and the one other NCIA official who "performed" the actual reviews:
"Seventeen jurisdictions were assessed on six separate PIECP required elements as part of the desk assessments: Wages, Displacement, Benefits, Deductions, Voluntary Participation, and changes in NEPA (Eligibility, Displacement, Consultation with Labor and with Business, and NEPA are assessed at the time of certification and designation). Therefore there is potential for a maximum of 102 separate instances of noncompliance. In fact, the non-compliance instances found by the desk assessors totaled 6. All have been resolved as of this writing.
Of the six instances, two involved training wage problems, two involved a lack of understanding of the PIECP regulations, one involved the interplay between state and federal law, and one involved a DES unable or unwilling to determine whether the minimum wage was in fact the 10th percentile."
All were found to be in compliance and to have complied with the mandatory requirements of the program, such as:
"3. Displacement
"The PIECP statute requires that a PIECP project not "result in the displacement of employed workers, or be applied in skills, crafts, or trades where there is a surplus of available gainful labor in the locality, or impair existing contracts for services." The 1999 Guideline repeats this same language, stating that the State department of economic
security must verify that the proposed PIECP project will not displace employed workers. In addition, the private sector company involved must provide a written statement that it will not displace its own workers in favor of PIECP inmates. A definition of displacement is provided in the Guideline that includes all the prohibited activities noted above, as well as the inappropriate transfer of private sector job functions to PIECP inmates.
"9. Findings:
"This element was reviewed and verified for all CHs at NCIA headquarters as part of NCIA’s designation process. Displacement documents for all CACs were compiled and reviewed and all CACs were found to be in full compliance. Annual wage reverifications also take displacement into consideration."
I find this "finding" to be ludicrous. There is no doubt that many private sector workers have been "displaced" by their jobs being taken and given to prisoners. In Lufkin, TX. in 2008, Lufkin Industries had to close down their trailer division due to competition from a PIECP industry in a nearby prison operation. Until they were on the verge of going under, Lufkin was completely unaware that they were competing with a relatively new competitor from within the prison - for sales of the same products. It was discovered that the PIECP industry was developed and opened without complying with the requirement of contacting competing private sector manufacturers or contacting local Union and labor groups prior to start-up. Of course during the furor over this loss of jobs, the NCIA and BJA were contacted about PIECP compliance issues. As in the latest "Assessments" of the program, both found that Texas' PIECP industry involving the trailer manufacturing, was in full compliance with the program guidelines!
This closure put 180 civilians out of a job - many of which had been with the company more than 15 years. It also resulted in a complete revamping of the Texas PIECP laws. Those laws abolished the Prison Industry Oversight Authority and put the program under authority of the Texas Department of Criminal Justice (TDJC). The new law disallows any PIECP operation start-up where any Texas civilian job will be lost to PIECP.
With the new Texas law passage, let's now look at the Florida PIECP Statutes - F.S. 946-522 and F.S. 946-523. Here they are directly from the online statute source:
"946.523Prison industry enhancement (PIE) programs.—
"(1)The corporation may operate or contract with the private sector for substantial involvement in a prison industry enhancement (PIE) program that includes, but is not limited to, contracts for the operation of a direct private sector business within a prison and the hiring of inmates. Any contract authorized by this subsection must be in compliance with federal law governing inmate work programs and must not result in the significant displacement of employed workers in the community. The purposes and objectives of this program are to:
(a)Increase the benefits to the general public by reimbursing the state for a portion of the costs of incarceration.
(b)Provide purposeful work for inmates.
(c)Increase job skills.
(d)Provide additional opportunities for rehabilitating inmates who are otherwise ineligible to work outside the prisons, such as maximum security inmates.
(e)Develop and establish new models for prison-based businesses that create jobs approximating conditions of private sector employment.
(f)Draw upon the economic base of operations for deposit into the Crimes Compensation Trust Fund.
(g)Substantially involve the private sector and its capital, management skills, and expertise in the design, development, and operation of businesses.
(h)Provide the financial basis for an inmate to contribute to the support of his or her family.
(i)Provide for the payment of state and federal taxes on an inmate’s wages, which are paid at the rate of the prevailing or minimum wage rate.
(j)Provide savings for the inmate to have available for his or her use upon the inmate’s eventual release from prison.
(2)Notwithstanding any other law to the contrary, including s. 440.15(8), private sector employers shall provide workers’ compensation coverage to inmates who participate in prison industry enhancement (PIE) programs under subsection (1). However, inmates are not entitled to unemployment compensation.
(emphasis added) and the other:
"946.522Prison Industries Trust Fund.—
"(1)The Prison Industries Trust Fund is created, to be administered by the Department of Financial Services. The trust fund shall consist of moneys authorized to be deducted pursuant to 18 U.S.C. s. 1761(c) and the applicable federal guidelines, to be appropriated by the Legislature, and moneys deposited by the corporation authorized under this part to manage and operate correctional work programs. The appropriated funds shall be used by the corporation for purposes of construction or renovation of its facilities or for the expansion or establishment of correctional work programs as described in this part or for prison industries enhancement (PIE) programs as authorized under s. 946.523.
(2)The funds must be deposited in the State Treasury and may be paid out only on warrants drawn by the Chief Financial Officer upon receipt of a corporate resolution that has been duly authorized by the board of directors of the corporation authorized under this part to manage and operate correctional work programs. The corporation shall maintain all necessary records and accounts relative to such funds.
(3)The trust fund is exempt from s. 215.20.
(4)Notwithstanding s. 216.301 and pursuant to s. 216.351, any balance in the trust fund at the end of any fiscal year shall remain in the trust fund at the end of that year and shall be available for carrying out the purposes of the trust fund.
(5)Pursuant to s. 19(f)(3), Art. III of the State Constitution, the trust fund consists of assets held by the state, in a trustee capacity, as an agent or fiduciary for the corporation authorized under this part, and is not subject to termination under s. 19(f)(2), Art. III of the State Constitution.
History.—s. 1, ch. 2000-278; s. 1935, ch. 2003-261.
(emphasis added).
Now let's look at the controlling federal law that 946.523 declares all contracts must be in compliance with:
"18 USC Sec. 1761. Transportation or importation
(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.
(b) This chapter shall not apply to agricultural commodities or
parts for the repair of farm machinery, nor to commodities
manufactured in a Federal, District of Columbia, or State
institution for use by the Federal Government, or by the District
of Columbia, or by any State or Political subdivision of a State or
not-for-profit organizations.
(c) In addition to the exceptions set forth in subsection (b) of
this section, this chapter shall not apply to goods, wares, or
merchandise manufactured, produced, or mined by convicts or
prisoners who -
(1) are participating in - one of not more than 50 non-Federal
prison work pilot projects designated by the Director of the
Bureau of Justice Assistance;
(2) have, in connection with such 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, except that such 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 (Federal, State, local);
(B) reasonable charges for room and board, as determined by
regulations issued by the chief State correctional officer, in
the case of a State prisoner;
(C) allocations for support of family pursuant to State
statute, court order, or agreement by the offender;
(D) contributions to any 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;
(3) have not solely by their status as offenders, been deprived
of the right to participate in benefits made available by the
Federal or State Government to other individuals on the basis of
their employment, such as workmen's compensation. However, such
convicts or prisoners shall not be qualified to receive any
payments for unemployment compensation while incarcerated,
notwithstanding any other provision of the law to the contrary;
and
(4) have participated in such employment voluntarily and have
agreed in advance to the specific deductions made from gross
wages pursuant to this section, and all other financial
arrangements as a result of participation in such employment.
(d) For the purposes of this section, the term "State" means a
State of the United States and any commonwealth, territory, or
possession of the United States.
(emphasis added).
The Florida law is in direct conflict with the federal law on at least two very important points; 1) 18 USC 1761(c) requires inmates be paid prevailing wages - with no "minimum wage" provision, and; 2) where the federal law mandates room and board deductions may be taken, it is for the purpose of offsetting taxpayer costs of incarceration (fully explained in the 1999 PIECP Guidlines) and not for the prison industry to use in offsetting their costs of operating the PIECP program. PRIDE has used the minimum wage and room and board provision to first underpay their inmate workforce considerably through use of minimum wage (legal in Florida) and then take back 40% of the gross wages actually paid and use that money to fund further PIE operations. As I wrote previously the corporation has withheld $4 million+/- from their workers for room and board and kept it! That's $4 million the Florida taxpayers had to fund in actual room and board paid into the FDOC budget over the past several years.
A trip to the PRIDE website provides their proud proclamation, "receives no appropriated funding from government":
"Prison Rehabilitative Industries and Diversified Enterprises, Inc. doing business as PRIDE Enterprises, is a nationally recognized inmate training company operating Agriculture, Sewn Products, Graphics, Manufacturing, and Services facilities throughout the state of Florida. PRIDE operates 41 training centers providing work and training to inmates in 29 state correctional facilities. PRIDE is a private, not-for-profit corporation founded in 1981, by the state legislature. PRIDE is financially self-sufficient and receives no appropriated funding from government. All programs are operated through sale of goods, with “profits” from work programs being reinvested to further PRIDE's Mission.
and as for the wages they pay PIECP participating inmates?
"The PIE Certification Program was created by Congress in 1979 to encourage states and units of local government to establish employment opportunities for prisoners that approximate private sector work opportunities. The program is designed to place inmates in a realistic working environment, pay them the local prevailing wage for similar work, and enable them to acquire marketable skills to increase their potential for successful rehabilitation and meaningful employment upon release."
Oh do they? Let's take a quick look at what the administration at PRIDE told the Board of Directors they are paying their inmates at their July 2006 Board meeting (click herethen select preview of PRIDE Mtg. Min 7-06 pdf):
"Mary Hinkle reported on behalf of the Audit Committee regarding PIE wage administration in answer to questions previously posed by Robert Sloan. Ms. Hinkle reviewed the PIE program (Prison Industry Enhancement Certification Program). She explained that the program covers products sold outside of the State with the exception of work viewed as a service. For PIE work, inmates are paid at the Florida minimum wage (currently higher than Federal minimum wage). Her audit concluded that the industries are complying and that inmates are informed of the program and information is available."
They have steadfastly insisted that they pay minimum wage and by doing so they have been found in compliance by the NCIA - from 1999 through the present!
Deduction complaints? I've made several and the FDOC Secretary tried to get the money from PRIDE in 2008, that they'd taken for room and board deductions and withheld from his agency. For over a decade now PRIDE has been taking 40% of their workers wages and "reinvesting" it in their operations under the state law. Ms. Auerbach knows full well that keeping or diverting that money back to the corporation is forbidden by PIECP law, yet she has continuously, in assessment after assessment found PRIDE in compliance with all PIECP laws.
The latest - 2009 PIECP Assessment Report - linked above provides this warning to program participants and directions to complainants regarding the mandatory requirements of PIECP:
"As the program arm of the U.S. Department of Justice, BJA has no criminal enforcement power over violations of the PIECP statute. That power rests with the Criminal Division of the USDOJ. However, as the agency identified by Congress to administer the PIECP program, BJA does have the authority to rescind a jurisdiction’s PIECP Certification if the jurisdiction is found to be out of compliance with PIECP mandatory requirements and if the jurisdiction is unwilling to work with BJA to come into compliance. Since 1995, BJA has provided grant funding to the National Correctional Industries Association (NCIA) to perform assessments to provide BJA with sufficient information to make compliance decisions. NCIA’s goal is to identify any non-compliant conditions and to assist the Certificate Holder to return to compliance within a reasonable period of time (usually 60 to 90 days). If compliance requirements cannot be met, BJA will rescind the PIECP Certificate.
"Mandatory requirements include meeting legal and administrative eligibility criteria; the payment of a comparable wage; the avoidance of displacement of civilian workers; the provision of benefits comparable to those made available to other workers on the basis 3 of their employment (workers’ compensation and FICA in some cases 1); voluntary inmate participation; wage deductions limited to 80% of gross salary and only for taxes, room and board, victims’ compensation/restitution, and family support; notification to organized labor and local business organizations of proposed operations; and compliance with the National Environmental Protection Act (NEPA).
Findings:
"No deductions issues were found during this assessment round."
My first complaints from 2003 through 2005 were directed at the DOJ's Criminal Investigative Division. From there they were forwarded to the Office of Justice Programs, to the BJA, and from there to the NCIA for review and response. Everything I have sent in the form of formal complaints, have always been forwarded to the NCIA for investigation and response.
In 2009 I finally got a response from Julius Dupree, Policy Advisor for the BJA promising a full investigation into PRIDE's PIECP operations - current and past. It was to be completed by "winter of 2009". As of earlier this week he has now promised the investigation is complete and the agency's findings will be available sometime in early January 2011.
The question remains: how is this corporation able to continue to violate every federal law controlling PIECP, and be found by the oversight agency and the NCIA to be in compliance? This raises an even bigger question; if we see a criminal act in progress, or know it is occurring, do we have a duty or responsibility to report that crime to the appropriate authority? I believe that answer is yes. Ms. Auerbach and other NCIA personnel who do these investigations and assessments, have found violations in every one of their reviews. Each report contains numerous pay wage violations. Yet having observed the violations, they work to bring the "criminal actor" into compliance rather than report the crimes to the DOJ Criminal Division. Each product made by a prisoner and shipped across stat lines without compliance is a federal felony punishable by fine and/or two years in a federal prison! I believe if it were you or I that had knowledge of the commission of a felony - ongoing felonies - and deliberately failed to report those crimes, charges would be considered against us once our knowledge and refusal to report them became known to those same authorities. Why is it different for the personnel assigned specifically to ensure such crimes are not committed? Geez that leads to another brief question...why haven't the DOJ agencies actually investigated the formal complaints sent to them? If they refer one or two to the NCIA and complaints continue to come in, don't they have a responsibility to initiate an investigation? I say yes.
Now I said I'd provide Indiana's PIECP laws for comparison. Same federal program, same provision to abide by the mandatory requirements.
"IC 11-10-7-2
Programs for employment of offenders by private persons; establishment; lease of land and improvements
Sec. 2. (a) The commissioner may establish programs for the employment of offenders by private persons. In establishing these programs, the commissioner may enter into agreements with any private person under which that person establishes, by construction, lease, or otherwise, facilities within the exterior boundary of any state adult correctional facility, for the manufacture and processing of goods or any other business, commercial, or agricultural enterprise.
(b) In administering this chapter, the commissioner may, as a part of or in connection with any agreement made under subsection (a), lease, for not more than twenty (20) years, land, with the improvements on it, located on the grounds of any state correctional facility for use by the private party to that agreement for providing employment under this chapter.
As added by Acts 1979, P.L.120, SEC.3. Amended by Acts 1980, P.L.87, SEC.4.
IC 11-10-7-3
Agreement between commissioner and private person; wages; employment on voluntary basis; unemployment compensation
Sec. 3. (a) Any agreement entered into between the commissioner and a private person under this chapter must provide that an offender employed by a private person under this chapter will be paid at least the prevailing wage for that type of work as established by the department of workforce development, including applicable wage increases for overtime work.
(b) An offender may be employed under this chapter only on a voluntary basis and only after the offender has been informed of the conditions of the offender's employment.
(c) An offender employed under this chapter is not eligible for unemployment compensation benefits under workforce development laws.
As added by Acts 1979, P.L.120, SEC.3. Amended by P.L.18-1987, SEC.10; P.L.21-1995, SEC.14.
"IC 11-10-7-5
Earnings of offender; distribution
Sec. 5. (a) The earnings of an offender employed under this chapter shall be surrendered to the department. This amount shall be distributed in the following order:
(1) Not less than twenty percent (20%) of the offender's gross earnings to be given to the offender or retained by the department. If retained by the department, the amount, with accrued interest if interest on the amount is earned, must be returned to the offender not later than at the time of the offender's release on parole or discharge.
(2) State and federal income taxes and Social Security deductions.
(3) The expenses of room and board, as fixed by the department and the budget agency, in facilities operated by the department, or, if the offender is housed in a facility not operated by the department, the amount paid by the department to the operator of the facility or other appropriate authority for room and board and other incidentals as established by agreement between the department and the appropriate authority.
(4) The support of the offender's dependents, when directed by the offender or ordered by the court to pay this support. If the offender's dependents are receiving welfare assistance, the appropriate county office of the division of family resources or welfare department in another state shall be notified of these disbursements.
(5) Ten percent (10%) of the offender's gross earnings, to be deposited in the violent crime victims compensation fund established by IC 5-2-6.1-40.
(6) If an offender is eligible for an offender reentry administrative account under IC 11-10-15, at least ten percent (10%) and not more than twenty percent (20%) of the offender's gross earnings, to be deposited in the offender's reentry administrative account.
(b) Any remaining amount shall be given to the offender or retained by the department in accord with subsection (a)(1).
(c) The department may, when special circumstances warrant or for just cause, waive the collection of room and board charges by or on behalf of a facility operated by the department or, if the offender is housed in a facility not operated by the department, authorize payment of room and board charges from other available funds."
Big difference in the laws between the two states. One comports with the legislative intent of PIECP and calls for the federal mandatory wage and deduction requirements to be followed. Because of Indiana's laws being in concert with the federal countrpart, less jobs are lost to prison labor, the inmates in the program are paid more ($7.25 min to $11.76 max per hour) as of mid 2010.
Indiana - not because it's my home state - has demonstrated they're willing to participate in the program, follow all of the requirements, not partner with then steal entire businesses from private manufacturers, aren't stealing civilian jobs and aren't taking money out of the inmate worker's pocket to fund continued operations. It's not just the laws that differ, it's also a difference in mindset. Indiana is not pursuing a "profit at all costs" agenda.
For years the BJA, DOJ and others involved in administering the PIECP program have been purposely averting their eyes from the machinations conducted by corporations such as PRIDE, CCA and Geo Group to increase profits by violating controlling laws. Money is stolen through improper use of deductions from their wages, stolen by not refunding deductions to the FDOC to offset incarceration costs, civilian competing businesses lose sales through lower pricing by PIC participants using cheap inmate labor...and you and others have your jobs stolen out from under you.
Time for everybody who has lost their job to pick up a pen or go online to the DOJ and start asking questions and demanding that they put a stop to this corporate theft of jobs.