EMANCIPATE THE FLSA: TRANSFORM THE
HARSH ECONOMIC REALITY OF WORKING
INMATES
PATRICE A. FULCHER*
ABSTRACT
Prisoner labor is a booming American industry. The 2.3 million people
in the United States of America (“U.S.”) behind bars serve as human
resources sustaining the Prison Industrial Complex. In a less economically
depressed market, perhaps there would be national prison reform
campaigns geared toward decreasing the prison population. But in today’s
economic climate, the increase of U.S. inhabitants sentenced to prison has
helped to quench the thirst for cheap, and in many instances, free laborers.
Proponents of the use of inmate labor in the U.S. have argued that inmates
should not be paid minimum wages because working for free is a part of
the punishment for their crime. However, critics maintain that forcing
inmates to work for free is the rebirth of chattel slavery.
In order to protect the rights of workers, Congress passed the Fair Labor
Standards Act (“FLSA”) in 1938, which in part, established the national
minimum wage requirement. Prison laborers were not specifically
addressed in the FLSA because the Act was designed to protect the
working blue-collar class and prevent unfair competition towards the end
of the Great Depression. Yet recently, U.S. courts have been faced with the
challenge of deciding whether inmate workers are covered under the FLSA.
In determining whether working prisoners should be paid wages under the
FLSA, courts decide whether prisoners are considered employees as
contemplated by the Act; as an employee, wages are guaranteed. Some
circuits categorically deny coverage to working inmates by saying they are
not employees, whereas other circuits make their determination based on an
economic realities test. Under this test, courts ascertain the economic
reality of the situation by determining whether the prisoner stood in an
employer-employee relationship with the entity for which he worked. This
application of the economic realities test is not only a rigid formulation, but
also undermines the basic purpose of the FLSA. Consequently, this Article
argues that the economic realities test should not be utilized to determine
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whether working inmates are employees. The FLSA should categorically
apply to all inmate laborers.
The Article first, traces the use of cheap labor from the early economic
reliance on indentured servants and slaves, to prison laborers. Second, it
discusses modern state and private prison labor system. Third, it explores
the creation of the FLSA and the ambiguities with regard to prisoners.
Fourth, it dissects the economic realities test and establishes its
ineffectiveness as applied to prisoners. Finally, the Article calls for the
application of the FLSA to all working inmates, leading to judicial
uniformity, and the redistribution of wealth from the prisons to the working
inmates thereby reducing recidivism.
*Associate Professor, Atlanta’s John Marshall Law School. J.D., Emory
University School of Law; B.A., Howard University. This article is
dedicated to my aunt Barbara, my cheerleader and friend, who passed away
in May 2013, and to the millions of prisoners and their families who have
become unwitting hostages in the Prison Industrial Complex. I would like
to thank my friends and collogues for commenting on the final draft, and
my phenomenal research assistants Chad Alexis and Campbell Williamson
for their fortitude and outstanding work. I would also like to thank my
family, for their continued encouragement, love and patience.
I. INTRODUCTION…………………………………………………...681
II. THE SEARCH FOR CHEAP LABOR IN THE U.S.: INDENTURED
SERVANTS, SLAVES, AND PRISONERS………………………683
A. U.S. RELIANCE ON INDENTURED SERVANTS AND
SLAVES………………………………………………………683
B. THE EARLY RISE AND FALL OF THE FIRST U.S. PRISON LABOR
SYSTEMS……………………………………………………..685
C. THE END OF SLAVERY AND THE REBIRTH OF PRISON LABOR
WITH THE PASSAGE OF THE 13TH AMENDMENT: BLACK CODES
AND THE CONVICT LEASE SYSTEM…………………………...686
III. PRISON LABOR REGULATIONS ON FEDERAL, STATE, AND PRIVATE
PRISON LABOR SYSTEMS……………………………………688
A. FEDERAL PRISON LABOR…………………………………….690
B. STATE PRISON LABOR………………………………………..691
1. STATE PRISON LABOR UNDER THE PRISON INDUSTRY
ENHANCEMENT CERTIFICATION PROGRAM (PIE)…………..692
2. STATE PRISON LABOR WITHOUT PIE PROTECTIONS….694
C. PRIVATE PRISON LABOR……………………………………...696
IV. FAIR LABOR STANDARDS ACT AND PRISONERS……………….697
A. FLSA- AMBIGUITY WITH REGARD TO PRISONERS…………….698
B. THE ASHURST-SUMNERS ACT: NOT DISPOSITIVE PROOF OF
CONGRESS’S INTENT TO EXCLUDE PRISONERS FROM THE
FLSA…………………………………………………………699

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C. ECONOMIC REALITIES TEST: UNEVEN FIT AS IT PERTAINS TO
PRISONERS…………………………………………………...700
V. CONCLUSION: EMANCIPATE THE FLSA, PAY ALL PRISON
LABORERS…………………………………………………...702
A. ELIMINATE THE ECONOMIC REALITIES TEST FOR JUDICIAL
UNIFORMITY…………………………………………………702
B. REALLOCATE GREATER WEALTH TO WORKING PRISONERS AND
DECREASE RECIDIVISM………………………………………704
I. Introduction
It has become quite apparent that the United States of America (“U.S.”)
has the largest number of people incarcerated than anywhere else in the
world. Astonishingly, there are over 2.3 million people imprisoned in the
U.S.,1 which is 25% of the people in the world’s prison population.2
Numerous factors influence the continued growth of the prison population.
Among the primary influences are drug laws and other sentencing schemes
that lock up more non-violent offenders, and the profit motives of private
prison companies, prison construction companies, and criminal injustice
systems. The secondary influences include politicians and elected officials,
courts, and investment banks. The media, and victim rights and other
groups exert ideological influence. In sum, these influences have led to
today’s reality: an oppressive system of inequity that has stripped over 2
million human beings of their humanity and sense of self worth.
Each year, it costs approximately 63 Billion dollars to house the U.S.
prison population: $31,000 a year per prisoner.3 Yet the U.S. continues to
incarcerate non-violent offenders at exorbitant rates,4 and supports
practices that incentivize incarceration.5 One incentive to keep prisons
filled with human commodities is to quench the Country’s thirst for cheap
labor. There are between six hundred thousand and a million prisoners
working full-time in jails and prisons throughout the U.S.6 The labor of
these working inmates create profits for federal, state, and private prisons,
1 Kim Koratsky, We’ve Come A Long Way, Maybe, THE FEDERAL LAWYER, June 2013, at 4, 11.
2 Lauren Salins & Shepard Simpson, Efforts to Fix A Broken System: Brown v. Plata and the
Prison Overcrowding Epidemic, 44 LOY. U. CHI. L.J. 1153, 1157 (2013) (315 million in the US, 7
billion in the world).
3 Martha Teichner, The cost of a nation of incarceration, CBS NEWS.COM (April 22, 2012 5:15
PM), http://www.cbsnews.com/8301-3445_162-57418495/the-cost-of-a-nation-of-incarceration.
4 See John Schmitt, Kris Warner, and Sarika Gupta, The High Budgetary Cost of Incarceration,
CENTER
FOR
ECONOMIC
AND
POLICY
RESEARCH
(2010),
http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.
5 See generally Patrice A. Fulcher, Hustle and Flow: Prison Privatization Fueling the Prison
Industrial Complex, 51 WASHBURN L.J. 589, 610 (2012).
6 Noah Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of
Employment Relationships, 61 VAN. L. REV. 857, 857-958 (2008).

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as well as private corporations because they are paid little to nothing for
their work. For example, state prisons pay working inmates an average of
$0.93 to $4.73 per hour; federal prisons pay $0.00 to $4.73 per day; and
private prisons, $0.16 to $0.50 per hour.7 Consequently, the use of inmates
as laborers has become a part of a multi-million dollar industry called the
Prison Industrial Complex (“PIC”), now contracted out to UNICOR.8 The
PIC has become a profiteering system of incentivized mass incarceration,
fueled by the economic interests of federal and state correctional
institutions, private corporations, and politicians.9
In order to protect the rights of workers, The Fair Labor Standards Act
(“FLSA”) was created in 1938 in part, to establish a national minimum
wage requirement and prevent unfair competition.10 However, working
inmates were not specifically included or excluded in the FLSA. Now
faced with lawsuits from inmate laborers, U.S. Courts have either
categorically refused to say the prisoners are employees under the FLSA,
or adopted various tests to determine prisoners’ employee status.11 One
such test is the economic realities test that determines whether an inmate is
an employee based on the employer’s control over the inmates working
environment.12 These current tests produce arbitrary and capricious results
because U.S. Courts do not have a clear understanding of how to treat
inmate laborers. This article first argues that the economic realities test
should be abolished and inmates categorically should be treated as
employees under the FLSA. This will result in needed judicial uniformity.
Second, this article opines that if working prisoners are given the
opportunity to earn minimum wage and save a majority of their earnings,
they are less likely to return to criminal activities upon their release. Thus,
the prison recidivism rate will decrease. This article addresses whether the
minimum wage requirements of the FLSA should apply to working
prisoners. It does not examine other mandates of the FLSA. Additionally,
this article does not address issues of unfair competition regarding the use
of uncompensated or minimally compensated inmate labor.

7 CRIMINAL JUSTICE INSTITUTE, THE 2001 CORRECTIONS YEARBOOK 130-131 (2002).
8 Sara Flounders, The Pentagon and Slave Labor in U.S. Prisons, INTERNATIONAL ACTION
CENTER (Jun 11, 2011 1:30 PM), http://www.globalresearch.ca/the-pentagon-and-slave-labor-in-u-sprisons/25376.
9 See generally Fulcher, supra note 5, 603.
10 See William P. Quigley, “A Fair Day’s Pay for a Fair Day’s Work”: Time to Raise and Index
the Minimum Wage, 27 ST. MARY’S L.J. 513, 528-529 (1996).
11 See Zatz, supra note 6, at 867.
12 Id. at 872.

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II. THE SEARCH FOR CHEAP LABOR IN THE U.S.:
INDENTURED SERVANTS, SLAVES, AND PRISONERS
Profiting from the use of forced human labor is not a novel concept in
the U.S. The U.S. began to satisfy the need for cheap labor through the use
of indentured servants and enslaved Africans, and now has turned to using
inmate laborers in order to make a profit.
A. U.S. Reliance On Indentured Servants And Slaves
The early seeds of the Prison Industrial complex grew from the demand
for cheap laborers to help colonize and build the economic foundations of
the “New World”. Colonial America needed a strong labor force to grow
and develop its agricultural wealth (cotton, tobacco, sugar, etc.). With large
amounts of cheap land available, the first laborers to foot this economic bill
were indentured servants,13 and then enslaved Africans.14
In the early 1600’s, indentured servants from Britain and other countries
voluntarily came to the colonies to work as servants for a period of four to
seven years, and then gained their freedom.15 The first African indentured
servants came to Jamestown in 1619 and worked alongside whites in the
tobacco fields of Virginia.16 This system of labor appeared to be mutually
beneficial; it helped to cultivate the land, and at the same time, paid
servants freedom dues, normally clothing and a plot of land, once they
gained their freedom.17 However, most indentured servants were treated
harshly and approximately 60% died prior to receiving their freedom.18
By the nineteenth century the use of indentured servants declined. Some
scholars argue that this decline was due to the increase of free laborers in
Pennsylvania,19 while others argue that immigrant families in the U.S.
developed the ability to pay for their relatives’ passage to the U.S. such that

13 See SLAVERY AND THE RISE OF THE ATLANTIC SYSTEM (Barbara L. Solow ed., Cambridge
University Press, 1991).
14 See generally RONALD SEGAL, THE BLACK DIASPORA: FIVE CENTURIES OF THE BLACK
EXPERIENCE OUTSIDE AFRICA (1995).
15 See Alfred L. Brophy, Law and Indentured Servitude in Mid-Eighteenth Century Pennsylvania,
28 WILLAMETTE L. REV. 69, 76 (1991).
16 See Veronica Hendrick, Codifying Humanity: The Legal Line Between Slave and Servant, 13
TEX. WESLEYAN L. REV. 685, 692 (2007).
17 Id.
18 Indentured
Servants,
INDEPENDENCE HALL ASSOCIATION,
(Jun.
30,
2013),
http://www.ushistory.org/us/5b.asp.
19 See SHARON SALINGER, TO SERVE WELL AND FAITHFULLY: LABOR AND INDENTURED SERVANTS
IN PENNSYLVANIA, 1682-1800 148, 150-151 (Cambridge University Press, 1987); see also CHEESMAN
HERRICK, WHITE SERVITUDE IN PENNSYLVANIA: INDENTURED AND REDEMPTION LABOR IN COLONY
AND COMMONWEALTH 265-266 (Negro University Press, 1969).

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they did not have to become indentured servants.20
In order to fill the labor gap caused by the decline of voluntary
indentured servants, Britain passed the Transportation Act in 1718.21 The
Transportation Act of 1718 allowed the transportation of British prisoners
to the colonies to work as indentured servants as punishment for their
crimes.22 While these first prison laborers fueled the needs of the capitalist
class, they also allowed Britain to dispose of political insurgents and
criminals.23 This act is one of the earliest instances of utilizing inmates to
satisfy economic, as well as political needs as an accepted policy. Yet
fearful of the demand for land by freed servants, colonist soon turned away
from indentured servitude in 1775 and started to rely on the labor of
enslaved Africans to fulfill their economic needs.
Landowners looked to African slaves as a more profitable source of
labor; slave labor was cheaper and renewable because slaves and their
children were bound to their masters for life.24 Over 12 million Africans
were enslaved, transported across the Atlantic, and sold in order to fill the
shortage of cheap labor.25 Although this statistic is staggering, it still does
not account for the millions of other enslaved Africans who were captured,
but died prior to being sold.26 The exploitation of enslaved African laborers
during the 16th through the 19th Centuries is unquestionable. Enslaved
Blacks suffered many uncountable atrocities in a system motivated by
profit and racism.27 Africans, targeted solely because of their race and a
belief by slave owners that they were uncivilized, were forced to work
without any form of compensation.28 Therefore, the forced labor of slaves
proved to be even more profitable than the use of indentured servants.
Enslaved Africans provided immeasurable income to private landowners,
built city and state infrastructures, and became the capital wealth for the
U.S. in the 19th Century.29
20 Farley Grubb, The End of European Immigrant Servitude in the United States: An Economic
Analysis of Market Collapse, 1772-1835, 54(4) THE J. OF ECON. HIST. 794, 804-805 (1994).
21 See generally A.T. EKIRCH, BOUND FOR AMERICA: THE TRANSPORTATION OF BRITISH
CONVICTS TO THE COLONIES, 1718-1775 (Clarendon Press, 1987).
22 Id.
23 Id.
24 David Menschel, Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848,
111 YALE L.J. 183, 209 (2001) (discussing how, consequently any hope of freedom possessed by
African indentured servants was gone with the passage of slave laws).
25 Segal, supra note 14, at 4.
26 DAVID ELTIS & DAVID RICHARDSON, THE NUMBERS GAME. IN: NORTHRUP, DAVID: THE
ATLANTIC SLAVE TRADE, 96 (Houghton Mifflin Co. 2nd ed. 2002).
27 Chris Weaver & Will Purcell, Comment, The Prison Industrial Complex: A Modern
Justification for African Enslavement?, 41 HOW. L.J. 349, 349 (1988).
28 Id.
29 Walter Johnson, King Cotton’s Long Shadow, THE NEW YORK TIMES, March 30, 2013,

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As the U.S.’s economic reliance on enslaved Africans grew, the initiative
to have inmates work while in prison started to take root in Pennsylvania at
the same time.
B. The Early Rise And Fall Of The First U.S. Prison Labor Systems
In 1773, the Philadelphia Walnut Street Jail (“WSJ”) was the first U.S.
penitentiary constructed.30 Initially, the WSJ required inmates to work as a
means of rehabilitation and not for economic gain.31 The operators of WSJ
believed that the principle cause of crime was idleness, so prison labor
would “. . .discipline the body, teach new habits, and lead to a recovery of
lost virtue”.32 WSJ later adopted a piece-price system of prison labor;
private contractors provided the raw materials, purchased the finished
product and sold it on the open market, while the state managed the
production of the goods.33 Gradually this system became unproductive due
to overcrowding at the jail.34
Soon other prisons in the North adopted the concept of utilizing
prisoners as free laborers. Yet instead of having inmates work as a form of
rehabilitation, the prisons contracted out the labor of their inmates in order
to cover mounting costs of running their facilities.35 This contract system
proved to be successful and became the dominant form of prison labor
throughout the Northern region of the U.S.36 For example, states such as
New York, Connecticut and Massachusetts contracted the labor of their
inmates in search of increased revenues and profits.37
Prior to the end of slavery, Southern states also utilized prison labor, but
adopted the convict-lease system.38 Under the convict-lease system,
prisoners were leased to work in labor-intensive industries such as
plantations, railroads, and mines.39 Although the convict lease system
existed in the South, it was not fully utilized until after the Civil War.40 As
http://opinionator.blogs.nytimes.com/2013/03/30/king-cottons-longshadow/?_php=true&_type=blogs&_r=0 (“[f]our million people worth at least $3 billion in 1860, which
was more than all the capital invested in railroads and factories in the United States combined”).
30 Stephen P. Garvey, Freeing Prisoners’ Labor, 50 STAN. L. REV. 339, 348 (1998).
31 Id. at 349.
32 Id.
33 Id. at 350.
34 Id.
35 E.T. Hiller, Development of the Systems of Control of Convict Labor in the United States, 5 J.
AM. INST. CRIM. L. & CRIMINOLOGY 241, 243-244 (1914).
36 Garvey, supra note 30, at 353.
37 Id.
38 Id. at 355.
39 Sharon Dolovich, State Punishment And Private Prisons, 55 DUKE L.J. 437, 452 (2005).
40 Id.

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discussed below in Section C, Southern states used the convict-lease
system to re-enslave African prisoners long after the Civil War in order to
replenish lost slave laborers.41 As early as 1825, Southern states started to
lease out the management of entire prison facilities to private entities.42
These privately run prisons in turn contracted out the labor of the prisoners
in order to cover costs. In 1825, the state of Kentucky leased its prison and
inmates to Joel Scott,43a private businessman, and Louisiana also turned to
private entities in 1835 because they could not afford to pay for the state’s
penitentiary.44
By the late 1800s, the use of prison labor in the North and South came
under attack,45 as well as the management of prisons by private entities.46
Labor unions across the country complained that the use of inmate labor
caused unemployment,47and prison reformers objected to poor living and
working conditions found in private prison institutions.48 Due to these
mounting pressures, the contract system diminished in the North between
the 1870’s and 1890’s and they settled on a state-use system.49 The state
use system mandated that the “state would be the only buyer of their
[prison] labor and the only market for their goods.”50 Southern states also
abolished the convict-lease system and adopted a state-use system, but not
until well into the 20th century.51
C. The End Of Slavery And The Rebirth Of Prison Labor With The Passage
Of The 13th Amendment: Black Codes And The Convict Lease System
During slavery, nearly half of all the capital and investments in the Deep
South52 were in enslaved Africans.53 When the Thirteenth Amendment54
41 DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME 54-56 (Anchor Books 2009).
42 Id.
43 See Alexis M. Durham III, Lease System, ENCYCLOPEDIA OF AMERICAN PRISONS 277, 278
(Marilyn D. McShane & Frank P. Williams III eds., 1996).
44 See MARK T. CARLETON, POLITICS AND PUNISHMENT: THE HISTORY OF THE LOUISIANA STATE
PENAL SYSTEM 8-9 (1971).
45 Garvey, supra note 30, at 363-364.
46 David E. Pozen, Managing A Correctional Marketplace: Prison Privatization In The United
States And The United Kingdom, 19 J.L. POLITICS 253, 258 (Summer 2003).
47 Garvey, supra note 30, at 362.
48 Pozen, supra note 46, at 257.
49 Garvey, supra note 30, at 364-365.
50 Id. at 362-363.
51 See generally Blackmon, supra note 41.
52 The Deep South was considered to be “The southeastern region of the United States: South
Carolina and Georgia and Alabama and Mississippi and Louisiana; prior to the American Civil War all
these states produced cotton and permitted slavery”, THE FREEDICTIONARY.COM, (last visited February
26, 2012). http://www.thefreedictionary.com/Deep+South.
53 James Grossman, PBS special Slavery by Another Name by Douglas A. Blackmon, PBS (Feb.
18, 2012), http://video.pbs.org/video/2176766758.

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ended chattel slavery in 1865, it resulted in a colossal loss of wealth for
slaveholders.55 (The 13th Amendment was ratified by a majority of the
states in 1865. However, Mississippi did not ratify the 13th Amendment
until 1995, and the state did not file notice of its ratification with the Office
of the Federal Register until February 2013).56 Yet surprisingly, the
Thirteenth Amendment proved to be a friend to wealthy Southerners; it
again provided them access to potential slave laborers.
The Thirteenth Amendment mandates that “Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction”. So, in response to the abolition of
slavery and the passage of the 13th Amendment, Southern legislatures
created laws called “Black Codes”. These seemingly race neutral statutes
allowed newly freed Africans to be arbitrarily arrested and imprisoned.57
Once convicted of a crime, a formerly enslaved African was again forced to
work for free under some type of prison labor system.58
One such prison labor system was the convict-lease system. Relying on
the language of the 13th Amendment, arrested and convicted Africans were
leased to farm plantations, coalmines, railroads, brickyards, and lumber
camps under the convict-lease system.59 The convict lease system
mimicked slavery because there were a large number of Africans working
for the benefit of wealthy Southerners for free.60 The use of inmate labor
54 U.S. CONST. amend. XIII, § 1.
55 Grossman, supra note 53.
56 Mississippi Ratifies 13th Amendment Banning Slavery, HUFF POST LIVE (February 20, 2013),
http://www.huffingtonpost.com/2013/02/18/mississippi-13th-amendment_n_2712289.html.
57 Black Code, United States History, THE BRITANNICA ENCYCLOPEDIA ONLINE,
http://www.britannica.com/EBchecked/topic/67722/black-code (“From 1865-1866, Black Codes were
laws created after the Civil war to ensure the continuance of white supremacy, the steady supply of
cheap labor, and the assumed inferiority of African Americans.”); Vagrancy laws for example were one
type of legislation enacted under the Black Codes (Weaver & Purcell, supra note 27, at 355); A vagrant
was defined as “[a]ny person who is wandering or strolling about in idleness, who is able to work, and
has no property”. In other words, Vagrancy laws made it a crime to be unemployed. (Id.); (As a result
of vagrancy laws and other Black Codes, tens of thousands of newly freed Africans were arbitrarily
arrested and wrongfully convicted.); COMMISSION ON INTERRACIAL COOPERATION, BURNT CORK AND
CRIME, 1-4 (1944) (In 1944, the Commission on Interracial Cooperation (CIC) documented the
enslavement of blacks for slave labor. The CIC published a book of summarized accounts of press
reports throughout the South recounting instances where White men had either dressed up as Blacks and
committed crimes or falsely accused Blacks of crimes. These “burnt cork crimes” encompassed a large
number of offenses so that Blacks would be charged and arrested).
58 Jennifer Roback, Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?, 51 U
CHI. L. REV. 1161, 1170 (1984).
59 Blackmon, supra note 41, at 54-56, 74, 343-346, 350, 351.
60 Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the
Progressive Era. Part 2: The Peonage cases, 82 COLUM. L. REV. 646, 650 (1982) (The Convict-lease
system was one of the most inhuman systems of forced labor in the United States during the
Reconstruction Era and well into the twentieth century.); See also John M. Brackett, Cutting Costs by
Cutting Lives: Prisoner Health and the Abolishment of Florida’s Convict-Lease System, 14 SOUTHERN

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through the convict-lease system proved to be profitable as it rebuilt the
post-Civil War infrastructure in the South and throughout the entire U.S.61
The convict-lease system endured from the Civil War until World War II,
although it was one of the most torturous prison labor systems in the U.S.62
Eventually, the efforts of alarmed unions (concerned with the expanded use
of prison labor and intervention into the free market), along with the work
of prison labor abolition groups, resulted in the elimination of the convictlease system.63 Yet in no time, other prison labor systems, such as the stateuse system and chain gangs, took the place of the convict-lease system.64 In
order to quell market concerns of the unionist, the state-use system allowed
the use of prison labor solely for state projects.65 Chain gangs were also a
form of forced labor, but it was also an extreme system of control over
prisoners. Chains were wrapped around the ankles of five prisoners while
they worked, ate, and slept.66 The use of these two prison labor systems as
originally enacted declined. However, the fundamental philosophy behind
state controlled prison labor still drives existing U.S. federal, state, and
private prison labor system.
III. PRISON LABOR REGULATIONS ON FEDERAL, STATE, AND
PRIVATE PRISON LABOR SYSTEMS
As government and private industries increased their reliance on inmate
labor to produce goods, U.S. labor unions and small businesses pressured
the government for tougher regulations on prison-made products.67
Consequently, Congress passed several measures restricting the interstate
sale of prison-made goods. In 1929, Congress passed the Hawes-Cooper
Act, which prevented states from selling goods made by prisoners in other
states.68 The thought behind the act was that it would help decrease the
effect of the availability of cheap prison-made goods on the open market.69
STUDIES: AN INTERDISCIPLINARY JOURNAL OF THE SOUTH 2 69-83 (2007) (Numerous African
Americans died due to a lack of adequate food, medical care, shelter and clothing).
61 ELINOR MYERS MCGINN, AT HARD LABOR: INMATE LABOR AT THE COLORADO STATE
PENITENTIARY, 1871-1940. (P. Lang, 1993).
62 Blackmon, supra note 41, at 1-9.
63 Ira Robbins, The Legal Dimensions of Private Incarceration, 38 AM. U. L. REV. 531, 607-608
(1989).
64 Garvey, supra note 30, at 339; WALTER WILSON, FORCED LABOR IN THE UNITED STATES, 68
(AMS Press, Inc. 1933).
65 Garvey, supra note 30, at 339.
66 Wilson, supra note 64, at 68.
67 William P. Quigley, Prison Work, Wages, and Catholic Social Thought: Justice Demands
Decent Work for Decent Wages, Even for Prisoners, 44 SANTA CLARA L. REV. 1159, 1162 (2004).
68 Weaver & Purcell, supra note 27, at 366-367.
69 Id.

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In 1935, Congress extended the law even further with the passage of the
Ashurst-Sumners Act which made it a federal crime to “knowingly
transport prison-made goods into a state that prohibited their sale”; and in
1940, the Ashurst-Sumners Act was amended, making the interstate
transportation and sale of prison-made goods a federal crime no matter
what state law provided.70 Hence, with the passage of these laws, the use of
prison laborers to produce goods was drastically reduced during that time.71
However, with today’s exploding prison population, contemporary
federal, state, and private correctional institutions have found ways to
increase the use of inmate laborers. Numerous government and private
agencies use prisoners to cut the cost of confinement and increase profits.72
U.S. correctional institutions use prison labor to directly benefit prisons and
government agencies, or outsource the work of prison laborers via contracts
with private corporations.73 Private companies such as IBM, Boeing,
Motorola, TWA, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target
Stores, Microsoft, AT&T Wireless, and Dell, are just a few of the corporate
elite who rely on cheap inmate labor in order to produce their goods under
cost.74 One obvious benefit of using a captive and cheap workforce is that a
corporation does not have to outsource its production to other countries; it
can pay U.S. prison workers slave wages then proudly slap a “MADE IN
AMERICA” sticker on the products. Another advantage of using prison
labor is that the federal government rewards private companies with tax
credits. Under the federal Work Opportunity Credit legislation (“WOTC”),
private-sector employers who use prisoners may reduce their federal
income tax liability between $2,400 and $9,600 per employee hired.75 For
example BP received lucrative tax write offs under the WOTC for using
inmates in Louisiana to clean up the oil spill in the Gulf of Mexico.76 It was
estimated that BP received $2,400 for every work release inmate they hired
to clean up the oil spill, and earned back up to 40 percent of the wages they
70 Quigley, supra note 67, at 1162.
71 Id.
72 David Leonhardt, As Prison Labor Grows, So Does the Debate, THE NEW YORK TIMES, Mar.
19, 2000, at A1, http://www.nytimes.com/2000/03/19/business/as-prison-labor-grows-so-does-thedebate.html?pagewanted=all&src=pm.
73 Vicky Pelaez, The prison industry in the United States: big business or a new form of slavery?,
GLOBAL RESEARCH (March 10, 2008), http://www.globalresearch.ca/the-prison-industry-in-the-unitedstates-big-business-or-a-new-form-of-slavery/8289.
74 Id.
75 UNITED STATES DEPARTMENT OF LABOR, Work Opportunity Tax Credit,
http://www.doleta.gov/business/incentives/opptax/wotcCommunityPartners.cfm (last updated Jan. 6,
2014).
76 Abe Louise Young, BP Hires Prison Labor to Clean Up Spill While Costal Residents struggle,
THE NATION (July 21, 2010), http://www.thenation.com/article/37828/bp-hires-prison-labor-clean-spillwhile-coastal-residents-struggle?page=0,1.

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paid to the inmates.77
Although federal, state, and private prison agencies are utilizing prison
labor under the limitations of the Ashurst-Sumners Act; each labor system
operates under different parameters.
A. Federal Prison Labor Systems
In 1930, the Bureau of Prisons (“BOP”) was created within the
Department of Justice and charged with the “management and regulation of
all Federal penal and correctional institutions.”78 Originally, there were
only 11 federal prisons; today there are 119 federal prisons in the U.S. that
are responsible for the custody and control of approximately 218,171
offenders.79 Approximately 81 percent of federal prisoners are housed in
federal-operated facilities, while the balance is confined in privately
managed or community-based facilities, and local jails.80
Every inmate in the U.S. federal prison system is required to work if he
or she is medically able.81 Unlike typical employees, federal inmates work
without minimum wage, overtime pay, health and safety protections, social
security withholdings, or union protection.82 The primary goals for forcing
Federal inmates to work have remained consistent over the years: (1)
reducing “idle hands,” (2) instilling discipline, and (3) promoting prison
self-sufficiency.83 Federal inmates have the option of earning from 12¢ to
40¢ an hour working jobs within the institution (working as orderlies,
plumbers, painters, or groundskeepers, or in food service or the
warehouse), or earning 23¢ to $1.15 per hour working in the Federal Prison
Industries (“FPI” or its trade name UNICOR)84 factories (making office
furniture, electronics, textiles, solar panels, the call center solutions,
laundries, printing, solar & renewable energy, and numerous other
77 Id.
78 FEDERAL BUREAU OF PRISONS, A Brief History of the Bureau of Prisons,
http://www.bop.gov/about/history.jsp.
79 FEDERAL BUREAU OF PRISONS, Quick Facts About the Bureau of Prisons,
http://www.bop.gov/news/quick.jsp#1, (last updated May 25, 2013).
80 FEDERAL BUREAU OF PRISONS, About the Bureau of Prisons,
http://www.bop.gov/about/index.jsp.
81 FEDERAL BUREAU OF PRISONS, Work Programs,
http://www.bop.gov/inmate_programs/work_prgms.jsp.
82 Flounders, supra note 8.
83 Michael C. Groh, Far (8.602) Gone: A Proposal To Maintain The Benefits Of Prison Work
Programs Despite The Restructuring Of Federal Prison Industries’ Mandatory Source Status, 42 PUB.
CONT. L.J. 391, 394-395 (Winter 2013).
84 The FPI was created in 1934 and is a wholly owned U.S. for-profit corporation. See UNICOR,
FACTORIES WITH FENCES 16 (2009),
http://www.unicor.gov/information/publications/pdfs/corporate/CATMC1101_C.pdf.

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industries).85 Yet whatever option they choose, these federal inmates are
forced to work for what is tantamount to slave wages, while government
corporations reap the benefits.86 Additionally, if a federal inmate chooses
to work for FPI, 50% of their income goes to the Inmate Financial
Responsibility Program (“IFRP”). The IFRP requires inmates to make
payments from their earnings to satisfy court-ordered fines, victim
restitution, child support, and other monetary judgments; most fines and
restitution payments go to a crime victim fund and not towards their
support upon release.87
In 2011, FPI’s net sales were 745 million dollars and their earnings were
62 million dollars.88 Restricted to sell its products only to federal agencies,
FPI’s largest purchaser is the U.S. Department of Defense, which makes up
52% of it revenues.89 The FPI use to have a mandatory source requirement
for all federal agencies, but it was amended to prohibit any federal agency
from purchasing FPI products or services, unless the agency determines
that the products offered are the “best value”.90 So in addition to making
license plates, furniture and other typical prison-made goods, thousands of
federal inmates work for FPI making supplies for the U.S. military. FPI
inmates who are given this assignment find themselves making anti-tank
missiles, body armor, land mine sweepers, components for fighter aircrafts,
and other gear for the Pentagon.91
Consequently, an inmate who works within the federal prison labor
system may make a maximum of $64.00 a month (prior to any state
deductions for room and board, taxes, etc., assuming an inmate works 5
days a week for 8 hours), and a maximum of $92.00 a month (subtracting
50% of the wages for the IRFP, assuming an inmate works 5 days a week
for 8 hours) if he works for FPI.
B. State Prison Labor Systems
There are approximately 1,382,000 inmates in state prisons in the U.S.92
85
86
87
88

Work Programs, supra note 81; UNICOR, Home, http://www.unicor.gov/.
Flounders, supra note 8.
Work Programs, supra note 81.
FEDERAL PRISON INDUSTRIES, INC., ANNUAL FINANCIAL STATEMENTS FISCAL YEAR 2012, U.S.
DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL AUDIT DIVISION AUDIT REPORT 13-03,
December 2012, http://www.justice.gov/oig/reports/2012/a1303.pdf, (last visited June 26, 2013).
89 FEDERAL BUREAU OF PRISONS, UNICOR FEDERAL PRISON INDUSTRIES, INC,
http://www.bop.gov/inmate_programs/unicor.jsp.
90 Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 637, 118 Stat. 2809, 3281
(2004).
91 Flounders, supra note 8.
92 E. ANNE CARSON & WILLIAM J. SABOL, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, PRISONERS IN 2011, p. 2 (Dec. 2012), http://www.bjs.gov/content/pub/pdf/p11.pdf.

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State prisoners work within varying labor systems while incarcerated.93
State inmates may (1) work within the confines of a prison, where state or
private entities manage the facility, sell the products produced, and receive
the profits, (2) work in jobs directly benefiting prison operations by
cleaning, cooking, or doing laundry, or (3) work outside of prison walls
laboring for the state or private companies.94 Over the last 30 years, at least
37 states have enacted laws permitting the use of inmate labor by private
enterprise.95 State inmates’ wages are determined by the state in which they
are incarcerated, and may be affected depending on whether the state
correctional facility is certified under the Prison Industry Enhancement
Certification Program.
1. State Prison Labor
Under The Prison Industry Enhancement Certification Program (“PIE”)
In 1979, Congress passed the Prison Industry Enhancement Certification
program (“PIE”) under the Justice System Improvement Act.96 The PIE
exempts state and local correction departments from the Ashurst-Sumners
Act legislation, which placed restrictions on the interstate sale and
transportation of prison-made goods.97 The specific goal of the PIE was to
provide private-sector work opportunities to prisoners by certifying 50 state
correctional agencies to sell prison made goods interstate and to the Federal
Government (over the original $10,000 limitation).98 Once a state agency is
certified under the PIE, its corrections department may either sell prison
made goods on its own, or enter into prison labor contracts with private
companies to sell goods in the free market.99
In order to qualify for PIE certification, correctional agencies have to
apply through the Bureau of Justice Assistance (“BJA”) or the National
Correctional Industries Association, pay state prisoners a prevailing wage,
and meet several other statutory requirements.100 Paying inmate workers
93 See Zatz, supra note 6, at 870.
94 Id. at 871.
95 Pelaez, supra note 73.
96 Justice System Improvement Act, Pub. L. No. 96-157, § 827, 93 Stat. 1167 (1979) (codified as
amended at 18 U.S.C. § 1761 (1988); RICHARD R. NEDELKOFF, U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE ASSISTANCE, PRISON ENHANCEMENT CERTIFICATION PROGRAM, p. 3 (July 2002),
www.ncjrs.gov/pdffiles1/bja/193772.pdf.
97 Nedelkoff, supra note 96 at 1.
98 Id. (The PIE originally authorized the certification of 7 state correctional agencies, but later
expanded it to 50); Prison Indusries Enhancement Certification Program, 49 Fed. Reg. 31346-03 (Aug.
6, 1984).
99 Garvey, supra note 30, at 372-373.
100 50 Fed. Reg. 12,663 (1985). State agencies have to meet all of the following requirements to be
certified under the PIE: (1) All states (including the District of Columbia, the Commonwealth of Puerto
Rico, and the Virgin Islands) and units of local government authorized by law to administer prison

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prevailing wages under the PIE may appear equitable on its face, but it is
not. Most inmates see only 20% of their gross wages because the PIE also
allows for 80% wage deductions for room and board, victim assistance,
taxes, and family support.101 While expecting convicts to defray the cost of
their incarceration and victim services is reasonable, as will be seen in part
x of this article, the current scheme is short sighted and unwise because,
among other things, so little attention is given to reducing recidivism
through prison programs and support for newly released inmates.
According to the Bureau of Justice Assistance, there were 37 state, and 4
county-based PIE certified correctional industry programs in the U.S. in
2011.102 These PIE programs include the management of at least 175
business partnerships with private industry.103 In 2012, the number of PIE
certifications increased to 45; these certified correctional agencies
employed a total of 4,700 inmates.104 Furthermore, the 45 certified PIE
agencies generated $9,780,130 in gross salary revenues in 2012.105 A
majority of those earnings went to net inmate salaries ($3,958,354), then
correctional institution for room and board ($3,482,883), state and federal
taxes ($989,503) victims’ programs ($947,770), and the lowest amount to
inmate family support ($401,620).106 Therefore, each of the 4,700
prisoners working for PIE certified programs made approximately $842.00
in 2012, which equates to $70.00 a month.

industry programs and projects are eligible to apply for project certification, (2) applicants must be able
to collect and provide for financial support to a crime victim compensation program, or crime victim
assistance program, (3) consult with local union central bodies, or similar labor organizations prior to
the submission of the application for project certification, (4) consult with representatives of local
business that may be affected prior to the submission of the application for project certification, (5)
must have verified by the appropriate State agency that the proposed wage plans are comparable to
wages paid for work of a similar nature in the locality in which the project is located, (6) must have
verified by the State Department of Economic Security that 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, (7) must
assure that inmate participation is voluntary and that inmate workers have agreed in advance to the
specific deductions made from their gross wages and all other financial arrangements, (8) must provide
for inmate worker entitlement to benefits and compensation as a result of injuries sustained in the
course of employment related to project certification, and (9) must provide for substantial involvement
of the private sector.
101 Id; Nedelkoff, supra note 96, at 3.
102 Julius C. Dupree, Jr., Bureau of Justice Assistance, PRISON INDUSTRY ENHANCEMENT
CERTIFICATION
PROGRAM
(PIECP)
(July
7,
2011),
available
at
http://www.ojp.usdoj.gov/BJA/grant/piecp.html.
103 Id.
104 PRISON INDUSTRIAL ENHANCEMENT CERTIFICATION PROGRAM, Certification & Cost
Accounting Center Listing, Statistics for the Quarter Ending December 31, 2012, available at
http://www.nationalcia.org/wp-content/uploads/Q4-2012-PIECP-Certificate-List.pdf.
105 Id.
106 Id.

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2. State Prison Labor Without PIE Protections
State correctional industries without PIE protections are prohibited from
selling prison-made products interstate.107 They also are under no federal
obligation to pay working prisoners prevailing wages as required for
certification under PIE.108 Depending on the facility, these state
correctional agencies typically require inmates to work, and pay inmates
from $0.17 to $5.35 per hour.109 There are also several state-operated
correctional institutions that force prisoners to work, but pay them
absolutely nothing for their labor. For example, the Georgia Department of
Corrections does not pay working inmates.110 Once a person is sentenced to
one of the Georgia’s 31 state prisons, he or she will be ordered to either
work jobs that directly benefit the prison, make products to be sold to
government agencies, or perform city work detail jobs without getting paid
a cent.111 In light of these facts, it is not surprising that on December 9,
2010, thousands of Georgia inmates staged the largest prison protest in
U.S. History.112 Through the use of contraband cell phones, Georgia
inmates in at least seven different state prisons coordinated a nonviolent
prison strike.113 These protesting inmates had several demands, but high on
their list was to be paid a living wage for work.114 “If they would start
paying us, that would reduce crime behind the walls,” said Mike, one of the
protesting prisoners, “inmates would have the means to get hygiene [items]
and food from the commissary.”115 The protest lasted approximately 5 days
and unfortunately, the prisoners’ demands have still not been met.116
Almost all Georgia state-prisoners are still working for free, at least three
inmates have publically complained that they were brutally beaten for their
involvement in the protest, and in July 2012 several Georgia prisoners went
107
108
109
110

18 U.S.C. § 1761(a).
Id.
See Zatz, supra note 6, at 870.
Rhonda Cook, Inmates use technology to organize state prison protest, ATLANTA JOURNALCONSTITUTION, Dec. 14, 2010, http://www.ajc.com/news/news/local/inmates-use-technology-toorganize-state-prison-pr/nQnsN/; Interview with Laura Sullivan: Inmates’ Jobs, From Call Centers To
Paint Mixing, Neal Conan, NPR police and prison correspondent, (NPR December 16, 2010),
http://pd.npr.org/anon.npr-mp3/npr/totn/2010/12/20101216_totn_03.mp3?dl=1.
111 FACILITY DESCRIPTIONS, GEORGIA DEPARTMENT OF CORRECTIONS,
http://www.dcor.state.ga.us/pdf/facilitiesDocument.pdf; Sullivan, supra note 110.
112 Sarah Wheaton, Prisoners Strike in Georgia, NY TIMES (December 12, 2010),
http://www.nytimes.com/2010/12/12/us/12prison.html?_r=0.
113 Id.
114 Id.
115 Sullivan, supra note 110.
116 Bruce Dixon, BLACK AGENDA REPORT, December 21, 2011,
http://blackagendareport.com/print/content/georgia-prison-strike-one-year-later-activists-outside-wallshave-failed-those-inside-walls.

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on a hunger strike to protest additional inhumane punishments stemming
from the 2010 prison protest.117
Finally, state prisoners labor for correctional institutions that fall under
the supervision of state departments of correction, but are separate selfsustaining corporate entities. Some of the prison industries have PIE
certification for all of their work programs while others certify only certain
jobs under PIE. Two such institutions in the U.S. are the Georgia
Correctional Industries (“GCI”) and the Oregon Corrections Enterprise
(“OCE”).118 GCI and OCE utilize state inmate labor to produce and sell a
plethora of services and products to state and local government agencies.119
For instance, GCI employs 1,400 Georgia inmates, who manufacture
garments and bedding, institutional and office furniture, cleaning
chemicals, perform embroidery, screen printing, reupholstering, engraving,
optical, and framing services, work in milk and meat processing plants, and
on farms to produce beef and pork, and harvest fruits and vegetables, eggs,
grits, and corn.120 GCI has some work programs certified under PIE, but a
majority of the employed inmates work for less than minimum wage.121
GCI boast on its website that they “maintain one of the lowest raw food
costs in the nation—$1.57 per day per inmate”.122 So inmates laboring in
GCI food production factories and fields in the sweltering heat of the Deep
South are paid roughly $31.40 a month if they are lucky (prior to state
deductions and if they work 5 days a week). Approximately 1,100 of
Oregon’s 14,300 prisoners work for OCE and perform a variety of services
for Oregon government agencies; printing, call centers, laundry service,
and mailing projects, and document scanning to name a few.123 OCE has
117 Kristi E. Swartz, Prisoner rights group protests alleged beatings, THE ATLANTA JOURNALCONSTITUTION (Jan. 6, 2011), http://www.ajc.com/news/news/local/prisoner-rights-group-protestsalleged-beatings/nQpST/; Tom Gagne, Support the Georgia Prisoners’ Hunger Strike,
SOCIALISTWORKER.COM, http://socialistworker.org/2012/07/12/georgia-prisoners-hunger-strike.
118 History, GEORGIA CORRECTIONAL INDUSTRIES,
http://www.gci-ga.com/index.php?option=com_content&view=article&id=17&Itemid=42;
About,
OREGON CORRECTIONS ENTERPRISE, http://oce.oregon.gov/about-oce.
119 Id.
120 About, GEORGIA CORRECTIONAL INDUSTRIES,
http://www.gci-ga.com/index.php?option=com_content&view=article&id=9&Itemid=38;
About,
GEORGIA CORRECTIONAL INDUSTRIES,
http://www.gci-ga.com/index.php?option=com_content&view=article&id=17&Itemid=42; Food and
Farm, GEORGIA CORRECTIONAL INDUSTRIES,
http://www.gci-ga.com/index.php?option=com_content&view=article&id=12&Itemid=39.
121 Prison Industries Enhancement, GEORGIA CORRECTIONAL INDUSTRIES, http://www.gciga.com/index.php?option=com_content&view=article&id=25&Itemid=31.
122 Food and Farm, supra note 120.
123 Les Zaitz, Oregon Corrections Enterprises needs changes to survive, PSU report says, THE
OREGONIAN (March 14, 2014),
http://www.oregonlive.com/politics/index.ssf/2013/03/oregon_corrections_enterprises.html.

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PIE certification, but it is difficult to determine whether it applies to all of
their work programs since inmates’ wages still appear to be low.124 In a
study conducted by University of Oregon students, three inmates at OCE
reported that after working each month, they had $50.00 to send home to
their families or add to phone call accounts.125
C. Private Prison Labor Systems
State governments turned to prison privatization in order to solve the
problems arising from the mass incarceration of people in the U.S.126 Thus,
the top two private prison corporations in the U.S., Corrections Corporation
of America, Inc. (“CCA”) and The GEO Group, Inc. (“GEO”), have made
billions from acquiring state and federal contracts to manage prisoners.127
CCA is the leading private prison in the U.S. for it profits from housing
more than 80,000 prisoners in the U.S.128 GEO, is one of the world’s
largest private prison corporations with approximately 80,000 beds and 114
facilities located in the U.S., the United Kingdom, Australia, and South
Africa.129 GEO is only second to CCA in the U.S. because GEO has 56
Facilities and a bed capacity of 61,132,130 while CCA 60 facilities with a
bed capacity of more than 90,000.131
It is clear that CCA and GEO deliver profits to their shareholders from
housing inmates, but they also create wealth through forced prison labor.
CCA maintains that inmates work in vocational jobs including carpentry,
computer applications, construction and building trades, electrical,
horticulture and landscaping, masonry, painting, and plumbing.132 GEO
also reports that it provides vocational training, but does not list the specific
jobs that inmates perform.133 Since the PIE only applies to state
correctional agencies, CCA and GEO are unable to apply directly for
certification. As a result, CCA and GEO are under no obligations to pay
their inmates prevailing wages.
124 PRISON ENHANCEMENT CERTIFICATION PROGRAM, supra note 104.
125 Behind These Walls, UNIVERSITY OF OREGON STUDENTS, 2010,
http://www.youtube.com/watch?feature=player_embedded&v=bzipCCRlnAs.
126 See Fulcher, supra note 5, at 590.
127 Id. at 602-603.
128 About CCA, CORRECTIONS CORPORATION OF AMERICA, http://cca.com/who-we-are (last
visited June 30, 2013).
129 See Fulcher, supra note 5, 603.
130 Id.
131 About CCA, supra note 128.
132 Vocational Training, CORRECTIONS CORPORATION OF AMERICA, http://cca.com/inmateservices/inmate-reentry-programs/vocational-training, (last visited June 30, 2013).
133 Who we are, THE GEO GROUP, INC., http://www.geogroup.com/about_us, (last visited June 30,
2013).

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It is difficult to determine how much private prisons actually pay
working inmates, but there is nothing to dispute that private prisons also
force able inmates to work. It is estimated that private prisons on average
pay inmates 17¢ per hour for a maximum of six hours a day, with CCA
paying working prisoners the most at .50¢ per hour for “highly skilled
positions”.134 Other sources suggest that CCA pays working inmates $1.00
a day, and at the same time charges them $5.00 a minute for telephone
calls.135 Additional reports indicate that private prisons pay an average of
93¢ to $4.73 per hour.136
Private prison companies also capitalized on the growing incarceration
of undocumented workers in the U.S. by obtaining million dollar federal
detention contracts to house detainees for Immigration and Customs
Enforcement (“ICE”).137 Like the other inmates they house, private prison
companies also force immigration detainees to work.138 CCA operates an
immigration detention center in Gainesville, Georgia.139 Female detainees
in this facility have complained that they are paid subminimum wages for
their work and about inadequate medical and living conditions.140
IV. FAIR LABOR STANDARDS ACT AND PRISONERS
The FLSA, as enacted in 1938, is a Federal statute mandating that
employees engaged in commerce, or in the production of goods for
commerce, are to be paid a mandatory minimum wage.141 “To be engaged
in commerce, individual employees must be performing work involving or
related to the movement of persons or things142 between states.”143 The
primary purpose of the FLSA was to maintain a necessary standard of
living for optimal health, efficiency, and general well being of workers.144
134 Pelaez, supra note 73.
135 Michael Snyder, Private Prisons: The More Americans They Put Behind Bars The More
Money
They
Make,
ECONOMIC
COLLAPSE
(March
11th,
2013),
http://theeconomiccollapseblog.com/archives/private-prisons-the-more-americans-they-put-behindbars-the-more-money-they-make.
136 Big Business Or Slave Labor? What Prisoners Make In Jail, NEWS ONE (October 3, 2011),
http://newsone.com/1562805/prison-labor-statistics-wiki/.
137 Immigrants’ Rights Fact Sheet, Securely Insecure The Real Costs, Consequences, and Human
Face of Immigration Detention, ACLU OF GEORGIA, http://www.acluga.org/our-work/immigrantsrights-project/immigrants-rights-fact-sheet/.
138 Id.
139 Id.
140 Id.
141 29 U.S.C. § 206(a)(1) (2002).
142 “Things” may be tangibles or intangibles, and include information and intelligence.
143 TIMOTHY P. GLYNN, RACHEL S. ARNOW-RICHMAN & CHARLES A. SULLIVAN, EMPLOYMENT
LAW PRIVATE ORDERING AND IT’S LIMITATIONS 692 (Aspen Publishers 2011).
144 29 U.S.C. § 202(a) (2002).

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Congress also wanted to prevent the spread of substandard labor conditions
among the several States.145
Since its enactment, the FLSA has been amended several times to further
broaden its scope.146 However, subsequent amendments have also been
made to exempt certain groups, thus narrowing its coverage. Prisoners have
not been made a part of any exempt group.147
A. FLSA- Ambiguity With Regard To Prisoners
The basic operation of the FLSA provides coverage for all employees
that meet the commerce requirements, but not for those who are in the
exempted category.148 At first impression, the question of whether prisoner
labor was contemplated as within the scope of the FLSA should be easy to
answer. It should follow under established rules if statutory construction
that groups of workers not specifically exempted from the FLSA should
remain within its scope.149 Therefore, if prisoners were not specifically
listed as an exempted group, they should benefit from the equable labor
protections afforded under the FLSA.
Prisoners not working for PIE certified correction agencies have sued in
order to obtain higher wages under the Fair Labor Standards Act.150
However, depending on the jurisdiction, most courts have found that the
FLSA does not apply to inmates through a finding that that prison workers
are not employees.151 These circuit courts opine that the exempted groups
of workers under the FLSA are individuals who would have ordinarily been
thought of as “traditional employees” if not for the exemption.152 Thus,
these circuit courts describe the proposal of prisoners being considered as
traditional employees as “too outlandish to occur to anyone when the
legislation was under consideration by Congress.”153 This belief has led to
verdicts against prisoners seeking wages, and has been the justification for
145 Id.
146 Mathew J. Lang, The Search for a Workable Standard for When Fair Labor Standards Act
Coverage Should Be Extended to Prisoner Workers, 5 U. PA. J. LAB. & EMP. L. 191, 192 (2002).
147 See 29 U.S.C. § 213 (2002); 29 U.S.C. § 214(a) (2002).
148 See 29 U.S.C. § 213.
149 Powell v. United States Cartridge Co., 339 U.S. 497, 512 (1950).
150 James Haslam, Prison Labor Under State Direction: Do Inmates Have the Right to FLSA
Coverage an Minimum Wage?, 1994 B.Y.U. L. REV. 369, 371 (1994).
151 See Gambetta v. Rison Rehabilitative Indus., 112 F.3d 1119 (11th Cir. 1997); Danneskjold v.
Hausrath, 82 F. 3d 37 (2d Cir. 1996).
152 See Lang, supra note 146, at 208.
153 Loving v. Johnson, 455 F.3d 562, 563 (5th Cir. 2006) (citing Bennett v. Frank, 395 F.3d 409,
409-10 (7th Cir. 2005); see also Franks v. Okla. State Indus., 7 F.3d 971, 972 (10th Cir. 1993); Harker
v. State Use Indus., 990 F.2d 131, 133 (4th Cir.1993); Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir. 1992);
Wentworth v. Solem, 548 F.2d 773, 775 (8th Cir.1977).

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denying working inmates the benefits of FLSA coverage.154
B. The Ashurst-Sumners Act: Not Dispositive Proof Of Congress’s
INTENT TO EXCLUDE PRISONERS FROM THE FLSA
The Ashurst-Sumners Act (“ASA”) specifically deals with prisoner labor
and makes it a criminal offense to knowingly transport interstate, prisonmade good for commerce.155 Similar to the FLSA, the ASA was aimed at
preventing the competitive advantage that employers gain by utilizing
cheap prisoner labor.156 The ASA was created three years before the FLSA;
many critics use this timeline as evidence of Congress’ intent on the
categorization of prisoner workers.157 Critics argue that FLSA coverage
would create an inconsistency with ASA when the two statutes are read
together.158 They argue that if prison workers have the right to earn wages
under the FLSA, then, by virtue of them earning wages, there should be no
unfair competitive advantage; and thus no need to criminalize the
commerce of prison made goods. Accordingly, they conclude that such
logic renders the ASA superfluous.159 Many courts that have adopted this
view hold that the problem of unfair competition resulting from prisoner
labor should be dealt with through the ASA and not the FLSA.160
Further, critics argue that two amendments made to the ASA in their
interpretation. The first amendment, the governmental use exemption, was
developed to allow federal, state, and local governments to use prison labor
as a means of offsetting costs of incarceration.161 The second amendment
154 See e.g., Vanskike v. Peters, 974 F.2d 806 C.A. (1992).
155 Section 1 of the Ashurst-Sumners Act, as amended, provides:
(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 not more than $1,000 or imprisoned not more than one
year, or both. 18 U.S.C. § 1761(a)(1) (1988) (amended 1992).
156 S. Rep. No. 906, 74th Cong., 1st Sess. (1935); 29 U.S.C. § 202(a) (2002).
157 See Vanskike, 974 F.2d at 812 (“the Ashurst-Sumners Act supports the conclusion that
Congress did not intend to extend the FLSA’s definition of “employee” to prisoners working in prison.
The Ashurst-Sumners Act was enacted in 1935-just three years before the enactment of the FLSA. It is
difficult to imagine that Congress would have enacted legislation in 1938 that rendered its recently
passed prison-goods law essentially superfluous.”).
158 Id.
159 Id.
160 Kentucky Whip & Collar Co. v. Illinois Cent. R.R. Co., 299 U.S. 334 (1937); Hale v. Arizona,
993 F.2d 1387, 1395-98 (9th Cir.); Harker v. State Use Indus., 990 F.2d 131, 134-35 (4th Cir.),
Vanskike v. Peters, 974 F.2d 806, 811-12 (7th Cir. 1992); McMaster v. Minnesota, 819 F. Supp. 1429,
1438-39 (D. Minn. 1993).
161 Alexander B. Wellen, Prisoners and the FLSA: Can the American Taxpayer Afford Extending
Prison Inmates the Federal Minimum Wage, 67 TEMP. L. REV. 295, 303 (Spring 1994).

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created PIE, which allows for the transportation of prison-made goods in
interstate commerce.162
These arguments may be helpful in determining Congress’ intent.
However, there are a few things to consider: (1) in light of the Circuit split
on the issue, Congress has yet to make a concrete amendment or
determination that definitively answers the question of prison labor wages;
(2) allowing federal state and local governments to benefit from prison
labor does not mean that minimum wage under the FLSA is to be ignored;
(3) there was no special allowance for private prisons to directly acquire
these benefits under these amendments, and they are one of the most
egregious offenders of prisoner labor exploitation; 163 and (4) under the PIE
program the prisoners are actually getting prevailing market wages as if
they were employees.
C. The Economic Realities Test: Uneven Fit As It Pertains To Prisoners
Some courts have interpreted FLSA to cover working inmates; yet there
is still no guarantee of wage payments.164 Working inmates must first be
determined to be an employee of the entity for which he works before
receiving wages.165 If a prisoner is not considered an employee of the
entity, his or her labor belongs to the penitentiary and it is not
compensable.166 When the penitentiary is deemed to be the owner of labor,
it is at the disposal of the warden,167which means that inmates are probably
going to be paid little to nothing for their work.
Determining whether an individual is an employee is not a
straightforward task for courts. The FLSA defines “employee” as “any
individual employed by an employer”; “employ” is defined as “to suffer or
permit to work”.168 Relying on these definitions, the Supreme Court has
held that FLSA coverage is determined by the “economic reality” of the
employment relationship.169 In these circumstances, the court utilizes what
is known as an economic reality test (“ERT”).170 This test has gone through
162 18 U.S.C. § 1761(c). (this section of the Ashurst-Sumners Act concerns goods produced under
the Bureau of Justice’s Private Sector/Prison Industry Enhancement Certification Program).
163 Pelaez, supra note 73.
164 See e.g., Carter v. Dutchess Community College, 735 F.2d 8, 15 (2nd Cir. 1984) (“[A]n inmate
may be entitled under the law to receive the federal minimum wage from an outside employer,
depending on how many typical employer prerogatives are exercised over the inmate by the outside
employer, and to what extent”).
165 Id. at 6.
166 Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir. 1983).
167 Id.
168 See 29 U.S.C. § 203(e)(1)(g).
169 Lang, supra note 146, at 197.
170 See Id.

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many modifications in its application towards prisoners,171 but today, there
is a consistent trend in the factors that Courts consider.172 These factors
include (1) the right to hire and fire the inmates, (2) supervising and
controlling the work, and (3) the maintenance of any existing employment
records.173 Most often, control is the most heavily weighted factor.174 So
the less control an employer has over a working inmate, the less likely it is
that the inmate will be considered to be an employee.
The ERT, outside of its application to prisoners, is generally used in two
situations.175 The first is when distinguishing between an employee and an
independent contractor,176 and the second is when there are two or more
employers and a question of employer liability arises.177 In the latter
situation, the task is to determine who was the employer of the
employee.178
The inclination in these situations is to find that the ERT not only defines
the status of the plaintiff, but also to presuppose that someone bears the
burden of wage payments. In the case of an employee, the employer bears
the burden.179 In the case of an independent contractor, the contractor
himself bears the burden of paying himself wages out of the money for
which he has bargained.180 In sum, the ERT determines whether an
individual receives wage payments, as well as who pays and how payment
is made. Employees are paid at least a minimum wage and independent
contractors are paid based on what they bargained for.
Utilizing the ERT to determine the status of non-prison workers is
related to furthering the policies behind the FLSA.181 Wage requirements
are important as they ensure a “minimum standard of living necessary for
health, efficiency, and general well-being of workers.”182 In addition, the
uniformity in wage requirements prevents uneven and substandard labor

171 Id.
172 See e.g., Gofron v. Piscel Technologies, Inc., 804 F.2d 1030, 1044 (5th Cir. 2011).
173 Id.
174 See Id.
175 See Zatz, supra note 6, at 871-872.
176 Glynn, supra note 143 at 5, citing Restatement Second Of Agency, § 2(3) (an independent
contractor is one “[w]ho contracts with another to do something for him but who is not controlled by
the other nor subject to the other’s right to control with respect to his physical conduct in the
performance of the undertaking.”); Zatz, supra note 6. (when someone works independently of any
employer’s control, she is “in business for herself,” an independent contractor rather than an employee).
177 See e.g., Falk v. Brennan, 414 U.S. 190, 195 (1973).
178 Id.
179 29 U.S.C. § 206(a)(1) (2002).
180 See Glynn, supra note 143, at 5.
181 29 U.S.C. § 206(a)(1) (2002).
182 29 U.S.C. § 202(a) (2002).

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conditions, and unfair competition in commerce.183 However, because
correctional institutions control the daily activities of working prisoners, an
application of the ERT is replete with inconsistencies, which is evident by
the split in circuit court decisions. Thus, reliance on the ERT to determine
FLSA coverage for working inmates should be abandoned.
V. CONCLUSION: EMANCIPATE THE FLSA, PAY ALL
WORKING PRISONERS
“No work is insignificant. All labor that uplifts humanity has dignity and
importance and should be undertaken with painstaking excellence.”184 As
the U.S. continues to be confined in prisons, and forced to labor for the
good of government and private entities, it is imperative that we bear in
mind that all labor is essential. Whether vital to prison operations or
fulfilling consumer needs, the work inmates perform is critical to the
success of almost every U.S. industry. So as inmates painstakingly labor
for the betterment of society, the “dignity and importance” of their work
must be honored with equitable compensation.
The FLSA was created to address the needs of the working class; the
forgotten laborers who were keeping the country afloat, but whose rights
had been disregarded.185 Prisoners now find themselves in a similar
predicament, but 80-foot walls and steel cages stifle their voices; no union
representative express their concerns, no protections separate them from
harsh and unjust work environments. If a person works outside prison
walls, he or she is typically considered to be an employee, and the FLSA
mandates that they at least be paid minimum wage. Working prisoners
deserve nothing less. Granting working inmates FLSA coverage will bring
dignity to their work, and at the same time, move towards judicial
uniformity in sentencing, and reduce prison recidivism.
A. Eliminate The Economic Realities Test for Judicial Uniformity
Currently there is no way to predict the outcome of an inmate’s FLSA
claim. Given the continued split in circuit decisions surrounding this issue,
it is likely that similarly situated working prisoners will be treated
differently across the country. Therefore, I tend to agree with the
proponents of uniformity in Federal decisions when determining whether

183 Id.
184 Dr. Martin Luther King Jr., Address To Local 1199 Salute To Freedom (March 10, 1968).
185 29 U.S.C. § 202(a) (2002).

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the FLSA should apply to prison workers.186 Specifically, uniformity is
necessary to protect the integrity of the FLSA and the legitimacy of judicial
decision-making relating to the protections afforded to working prisoners.
The language of the FLSA is clear regarding the definitions of employer
and employee as well as those who are specifically exempt from FLSA
coverage. Nevertheless, the use of the ERT to determine whether working
inmates are employees undermines the integrity of the FLSA and its
designs. As outlined above, the ERT is clearly inapplicable to working
prisoners. At no point in time do inmates bargain for the benefit of their
work, or have any significant control over their labor. Furthermore,
determining whether a working inmate is an employee by the degree of
control exerted over him or where he works is equally irrational. Inmates
who are forced to work inside prison walls washing clothes, cooking food,
and mopping floors, for thousands of other inmates each day, are just as
deserving of compensation as inmates who are forced to call voters on
behalf of a political candidates, sew clothes for Victoria’s Secret and JC
Penney,187 or fight forest fires.188
Therefore, in order to preserve the legitimacy of judicial decisions and
bring about uniformity regarding FLSA treatment of working prisoners, the
FLSA should be interpreted in accordance with the language of the
statute.189 Because working prisoners are not specifically excluded under
the FLSA, and are “. . .individual[s] employed by an employer,” they are
employees deserving of coverage under the FLSA.190 If this approach is
adopted, litigants as well as courts will have a clearer understanding of how
to interpret the FLSA’s application to working prisoners thereby creating
desired judicial uniformity.191
186 Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1584 (2008).
187 Caroline Winter, What do Prisoners Make for Victoria’s Secret?, MOTHERJONES.COM- Politics
(July /August 2008), http://motherjones.com/politics/2008/07/what-do-prisoners-make-victorias-secret.
188 Toni McAllister, Inmate Fire Crews Focus Of New Bill From Lake Elsinore Lawmaker, LAKE
ELSINORE- WILDMOR PATCH (January 31, 2012 at 10:05p.m.), http://lakeelsinorewildomar.patch.com/groups/politics-and-elections/p/inmate-fire-crews-highlighted-in-new-bill-fromlake-e4839a4dd51 (more than 4,000 California prisoners are trained to fight forest fires); CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION DELTA FIRE CAMP: 2008-2009 SOLANO GRAND
JURY
REPORT,
SOLANO
COUNTY,
CALIFORNIA
SUPERIOR
COURT,
http://www.solano.courts.ca.gov/materials/DeltaFireCamp.pdf (California inmates trained in the Delta
Fire Camp are “paid on a scale that relates to their job description; $1.45 a day for laborers to $3.90 a
day for one lead cooks. When the inmates are employed under emergency conditions such as fire and
flood, they are paid at the rate of $1.00 an hour”).
189 Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1794-1796
(2005) (discussing the three concepts of Constitutional Legitimacy (1) Legal legitimacy, (2)
Sociological legitimacy, and (3) Moral legitimacy).
190 See 29 U.S.C. § 203(e)(1).
191 See e.g. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the
Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093,
1096–97 (1987) (“In general, we think it more aggravating if citizens of Maine and Florida are

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B. Reallocate Greater Wealth To Working Prisoners and Decrease
Recidivism
Working for slave wages or as a slave without compensation is the harsh
economic reality for millions of prisoners in the U.S. Then after
succumbing to living a life as a slave for the duration of their sentence,
these prisoners are released back to society, without any means of financial
support from their labors. Often indigent, homeless, and unable to
overcome the challenge of obtaining employment with a conviction, many
former inmates reoffend.192 Moreover, for those who do secure jobs, their
earnings are greatly limited by their criminal records. A recent PEW study
revealed “past incarceration reduced subsequent wages by 11 percent, cut
annual employment by nine weeks and reduced yearly earnings by 40
percent.”193 As a result, U.S. recidivism rates will remain high unless
former prisoners have economic resources immediately upon release. Thus,
the FLSA should be emancipated from the constraints imposed, not by
Congress, but by rigid and unsupported judicial interpretation that wrongly
exclude working prisoners from its provisions. Free the FLSA and
compensate working inmates; allow prisoners to accumulate capital while
they are incarcerated, so they will have a means of support to help them
rebuild their lives, and not have to commit crimes to survive.
Hence, I propose the following basic guidelines in providing FLSA
coverage to working inmates: (1) employment should be voluntary; those
who do not wish to work must take vocational classes for their entire prison
sentence, (2) working inmates should be paid at least minimum wage, (3)
automatic wage deductions shall be allowed for taxes and other previous
court ordered obligations only, and (4) a forced 80 percent wage deduction
will be deposited into an outside interest bearing bank account, accessible
only upon release. In adopting this payment scheme, the economic reality
for working prisoners will be greatly improved.
Utilizing the total PIE quarterly statics from 2012 mentioned above in
section III(B)(1)(only subtracting family costs and taxes), each of the,
threatened with having to live under different understandings of the same federal statute (as put in place
by the judgments of their respective courts of appeals) than if citizens of Illinois are faced with a
unique, and possibly erroneous, reading of another statute”).
192 Eve Tahmincioglu, Unable To Get Jobs, Freed Inmates Return To Jail, NBCNEWS.COM
(February 17, 2010), http://www.nbcnews.com/id/15020964/#.UdSpJhbIato.
193 THE PEW CHARITABLE TRUSTS, COLLATERAL COSTS: INCARCERATION’S EFFECT ON
ECONOMIC MOBILITY, THE PEW CHARITABLE TRUSTS, (Pew Charitable Trusts 2010), available at
http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Economic_Mobility/Collateral%20
Costs%20FINAL.pdf.

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4,700 inmates working in PIE programs would have received
approximately $356.00 a month instead of $70.00.194 This figure represents
net wages after an 80 percent deduction of $1,427.00 is transferred into an
interest bearing account.195 Additionally, since today’s prisoners serve an
average of 5.2 years in prison,196 each of the 4,700 inmates under the
proposed new FLSA guidelines would have at least $3,567.50 upon his or
her release if the 80% were placed in an account with an interest rate of at
least a 3%. Granted, this amount may not seem significant, but it is better
than expecting that a bus ticket and a knapsack of clothes will be enough to
enable a person who has been incarcerated to build his life in free society.
Some proponents of prison slave labor argue that inmates should not be
paid because they have to work off their debt to society, or that the existing
labor programs are successful. My response is two-fold. First, the
punishment for a crime is the sentence mandated by the court, and not
additional penalties correctional institutions decide to impose. I specifically
address this issue in an upcoming article, but I believe that forcing inmates
to work and pay fines that are not a court ordered is tantamount to double
jeopardy, punishing inmates twice for the same crime. Second, I recognize
that there are modern prison work programs such as PIE that pay minimum
wages to working inmates, but withholding 80 percent of inmate wages is
almost as appalling as not paying them at all.197 I do not dispute that
working prisoners should pay taxes and any previously court ordered
restitution, but there is a fundamental problem with correctional intuitions
deducting room and board and forcing inmates to pay into a general victim
assistance program.
First, U.S. taxpayers are required to pay for the prison operations as a
part of their tax obligations. For example, taxpayers in Georgia pay $1
billion a year to house the state’s prisoners.198 Therefore inmates should
not be charged for room and board since taxpayers already pay the expense.
Likewise, if fees for room and board have been deducted from inmate
wages to offset prison costs, then who is entitled to the fees? As a Georgia
taxpayer, I have yet to receive a refund check from inmate wages offsetting
the prison taxes I pay. Moreover, this rationale for not paying working
inmates is even weaker if inmates are confined in private prisons. The
194 See supra Part III.B.1 (current PIE calculations).
195 PRISON INDUSTRIAL ENHANCEMENT CERTIFICATION PROGRAM, supra note 104.
196 Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other
Nations,
JUSTICE
POLICY
INSTITUTE,
at
20
(April
2011),
http://www.justicepolicy.org/uploads/justicepolicy/documents/sentencing.pdf.
197 18 U.S.C. § 1761, supra note 96.
198 Bill Rankin and Carrie Teegardin, A billion-dollar burden or justice?, AJC.COM (May 30,
2010), http://www.ajc.com/news/news/local-govt-politics/a-billion-dollar-burden-or-justice/nQgFp/.

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wages that inmates earn in private prisons are not going back to the
government to “pay their debt to society”; they are added to the profits of
private prison corporations. Thus, arguing that inmates should work as
slaves for the betterment of society in the framework of prison privatization
is completely meaningless.
Second, automatically deducting money from inmate wages for general
victim assistance programs is also problematic. A majority of the 2 million
plus people in the U.S. are incarcerated for non-violent, victimless drug
crimes.199 Forcing inmates to pay into a general victim fund to assist
people they have not harmed, is completely inequitable and without
justification. The basic principle of punishment is that people should be
punished for crimes they commit or assist in committing. If prisoners have
not been ordered to pay restitution, or have committed victimless crimes,
then they should not be forced to pay into a general victim assistance fund.
Sure, utilitarian justifications of punishment may condone punishing
innocent people for the betterment of society under certain
circumstances,200 but in this context it is clearly inequitable.
Finally, the FLSA should apply to working prisoners not only to achieve
judicial uniformity and reduce recidivism rates, but also to restore the
dignity and humanity of human beings imprisoned in the U.S. Mahatma
Ghandi was correct when he said that a “A nation’s greatness is measured
by how it treats its weakest members.” So every U.S. inhabitant should be
incensed, and eager to join the movement to change the way this country
treats its prisoners. The U.S. cannot afford the social costs of continued
promotion and support of a system of revived slavery.201
Affording working prisoners FLSA coverage is just another necessary
step on the journey to dismantling the oppressive system we have come to
know as the Prison Industrial Complex.202 The magnitude of this issue
mandates that all who believe in notions of decency and fairness be as
courageous as Harriet Tubman and John Brown were on the issue of
slavery. If we fail to answer the sacred call to justice, we will find
ourselves in the same position as Pastor Martin Niemoller in 1946 when he
199 Michael Suede, Why We Need Prison Reform: Victimless Crimes Are 86% of the Federal
Prison Population, POLICYMIC.COM (May 18, 2012), http://www.policymic.com/articles/8558/why-weneed-prison-reform-victimless-crimes-are-86-of-the-federal-prison-population; NATIONAL POLICY
COMMITTEE, THE USE OF INCARCERATION IN THE UNITED STATES NATIONAL POLICY WHITE PAPER
AMERICAN
SOCIETY
OF
CRIMINOLOGY
(Nov.
2000),
http://www.ssc.wisc.edu/~oliver/RACIAL/Reports/ascincarcerationdraft.pdf.
200 See generally, Guyora Binder and Nicholas Smith, Framed: Utilitarianism and Punishment of
the Innocent, 32 RUTGERS L.J. 115 (2000).
201 Suede, supra note 199.
202 See generally Fulcher, supra note 5. (the first step I argue is to rid the U.S. of prison
privatization).

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wrote the poem First they Came203 about the complacency and inaction of
German intellectuals following the Nazi rise to power. If we sit in silence
as the profiteers of human incarceration fill their capital needs by using
human beings as no more than human labor commodities, who will be left
to speak up when they turn their sights on us?

203 Martin Niemöller: “First They Came For The Socialists...”, United States Holocaust Memorial
Museum,
THE
HOLOCAUST
ENCYCLOPEDIA,
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007392 , (last visited July 3, 2013) (First they
came for the Socialists, and I did not speak out--
Because I was not a Socialist. Then they came for the
Trade Unionists, and I did not speak out-- 
Because I was not a Trade Unionist. Then they came for the
Jews, and I did not speak out-- 
Because I was not a Jew. Then they came for me--and there was no one
left to speak for me).