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Human Trafficking Center

Constitutional Loophole Allows Forced Labor in the U.S.

30

Mar 2016

5

 

By Briana Simmons, Research Assistant

The Non-abolition of Slavery

Recently, many prominent anti-trafficking organizations lauded the passage of a bill  closing a loophole that allowed the import of goods produced by forced labor.  None of them noted the irony that the US Constitution allows for such goods to be produced, sold, and consumed within its borders.

This hypocrisy is significant as the U.S. incarcerates more of its own people than any other nation in the world, exposing them to forced commercial labor within state and federal penitentiaries while banning the import of goods produced by convict labor abroad.

The 13th Amendment reads, “Neither slavery nor involuntary servitude, except for punishment of a crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction,” (emphasis added).  While this amendment allows for forced labor of prisoners, more recent federal law requires it.  According to federal trafficking legislation, obtaining a person by force for the purpose of involuntary servitude is labor trafficking– except for prisoners.

This glaring exception to the abolition of involuntary servitude has led to one company that earned $553 million in 2013 by using the labor of over 20,000 convicts according to its own numbers.  

While anti-trafficking organizations lament the outsourcing of jobs to parts of the world with exploitive labor conditions, they often fail to acknowledge how the high rates of incarceration in the U.S. creates an immense, involuntary domestic labor force earning little to no money in compensation for their labor.

History of US Prison Labor

Douglas Blackmon, author of Slavery by Another Name, has written extensively on the convict leasing system’s use of criminalization to create a labor force replacing chattel slavery. This system remained intact until the 1950s- about 85 years after the passage of the 13th Amendment in 1865.

Prior to mass incarceration, the convict leasing system thrived in the Southern region of the U.S. Small or invented infractions resulted in arrest and conviction. In order to pay off fines, a convict’s labor was contracted out to plantation owners and private companies where there were little to no labor protections, and some laborers were worked literally to death.

As in the era of convict leasing, modern prison populations are disproportionately black and brown. The Center for American Progress created a list of the top ten startling facts about people of color (POC) and the criminal justice system including that while POC make up about 30% of the U.S. population they represent about 60% of the prison population.

Prison Labor Today (and in Colorado)

In 1934, Federal Prison Industries, publicly traded under the name UNICOR, began a federal inmate worker program for private prisons ostensibly in an effort to reduce recidivism.  This claim has not been substantiated by methodologically rigorous studies.

Today, many everyday products are manufactured in prisons, and a number of services are performed by inmates. Inmates manufacture furniture, law enforcement equipment, and license plates. Sprint and Verizon outsource telecommunications jobs to call centers in prisons. In 2013, Colorado Correctional Industries made $65 million in profit from its inmate-run fishery, vineyard, and goat farm.  

Even with goat farming skills, how is recidivism not a possibility with so many legal restrictions on the livelihoods of ex-offenders?  Requiring convicted felons to “check the box” for almost all job applications severely limits their job prospects. Furthermore, it denies them a number of licenses for specialized professions and makes them ineligible for public benefits such as food stamps and public housing.

In some cases, the labor of inmates is eerily reminiscent of centuries old plantations. Prison profiteers, who have a vested interest in prison expansion, are keenly aware of the multitude of advantages for companies and the government to outsource labor to prisons- even when it negatively impacts other small businesses who can’t compete with wages of  $0.23 to $1.15 per hour.  

Solutions

Human trafficking organizations must reallocate some of their policy efforts, resources, and awareness campaigns to forced labor within U.S. penitentiaries.  

Along with anti-trafficking movements, the general public also has the responsibility to reimagine the goals of incarceration. Countries such as Sweden and Norway have set a precedent of effective alternative prison systems.

The private companies that run these programs claim they reduce recidivism, though independent studies confirming this are lacking.  The onerous legal restrictions placed on ex-offenders upon their release aren’t conducive to full reintegration- which can’t be mitigated by a forced labor in prison. U.S. penitentiaries need to incorporate actual rehabilitation programs in three main areas: education, mental health counseling, and drug abuse, as well as reintegration programs.

If society really wants to talk about prison reform, urgent attention must be redirected to the 13th Amendment as it is the defining piece of legislation allowing forced labor in the U.S. and its jurisdictions.

*The views and opinions expressed in this blog do not necessarily reflect the position of the HTC

 

Note: The first annual Prisoners Justice: Reimagining Punishment in America will be held at the University of Denver April 1-2, 2016.

Image via joedylehigh.


About the Human Trafficking Center

The Human Trafficking Center, housed in the University of Denver’s Josef Korbel School of International Studies, is the only two-year, graduate-level, professional-training degree in human trafficking in the United States. One way graduate students contribute to the study of human trafficking is by publishing research-based blogs. The HTC was founded in 2002 to apply sound research and reliable methodology to the field of human trafficking research and advocacy.

Founded in 1964, the Josef Korbel School of International Studies is one of the world’s leading schools for the study of international relations. The School offers degree programs in international affairs and is named in honor of its founder and first dean, Josef Korbel.

 

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5 Responses to “Constitutional Loophole Allows Forced Labor in the U.S.”

  1. D Burnett

    #1 Way to end Mass Incarceration

    By: Dennis Burnett

    The enclosed story comes as advocacy for Criminal Justice Reform. Specifically, the Indictment and Grand Jury process, the process that initiates prosecutions and inevitably leads to mass incarceration. A process hidden in secrecy, which government prosecutors have complete Carte Blanche. Prosecutors power over the Grand Jury ensures that anyone, virtually anywhere, for any reason, can become a target of an indictment. Many lawyers, judges, and scholars have expressed skepticism concerning the prosecutors power over the Grand Jury.

    A Chief Judge (Judge Sol Wachtler) once publicly stated a Grand Jury would indict a “Ham Sandwich” if asked to do so by the prosecutor.

    The Grand Jury goes unchecked by any governmental agency and there is no judge in place to monitor the Grand Jury proceeding. Defense attorneys are not allowed in the Grand Jury room and transcripts are rarely made available to defendants. A defendant has limited ability to challenge or inquire into the propriety of a Grand Jury determinations, even if that determination is based on incompetent, irrelevant, or unconstitutionally obtained evidence. Prosecutors are under no legal duty to present evidence in their possession to the Grand Jury which negates guilt or probable cause.

    The Grand Jury was originally designed as a fair method for instituting criminal charges and to serve as a protector of the people against unfounded criminal prosecutions, a defense against arbitrary and oppressive Government action. Today, this is no longer the case. Prosecutors now use the Grand Jury as a pawn in a technical game to indict, overcharge, and convict. Today’s Federal Grand Juries fail to provide any resistance to the government, and serve as a machine of mass incarceration, government expansion, and caprice. Instead of obstructing and opposing the over-reach of government prosecutors, the secrecy of the Grand Jury provide prosecutors with their cover for misconduct and perjury on a massive scale, and a means to abuse, threaten, and intimidate the American people. Prosecutors now effectively use the Grand Jury as a arm of the prosecution, a social and political weapon, a weapon of mass destruction.

    How can a Grand Jury perform its mission, to clear the innocent and protect the American people against arbitrary and oppressive government action when a prosecutor has no legal duty to present exculpatory evidence i their possession to the Grand Jury? With no system in place to monitor prosecutors, how can the Grand Jury proceeding be considered fair? Prosecutors employ tactics of fraud, deceit, misrepresentation, overcharging, bribery, and terror to obtain indictments and seek convictions. Stopping the growth of the industrial complex and mass incarceration has to start at the root of the problem, not the result. The Grand Jury process needs to be reformed and protections need to be added to limit prosecutor’s power and abuse over the Grand Jury, and to hold them accountable for their actions.

    This letter and story is about exposing the corruption of the Grand Jury to the public and ending mass incarceration. Reforming the Grand Jury will protect the innocent, reduce wrongful convictions, deter overcharging and over-sentencing, and dramatically help end mass incarceration. If a statistical analysis and an investigation into the Grand Jury’s practice and procedures were to take place, Grand Jury Reform would be inevitable.

    http://www.freedomisamust911.wordpress.com

  2. maxinedoogan

    Thank you so much for speaking about this fatal flaw in our constitution. Now, I expect that folks who say they care about ending forced labor can come together to make the change instead of conflating prostitution with forced labor.

    • Briana Simmons

      Hi maxinedoogan,

      Thank you for reading! Your response speaks to a challenge of human trafficking in general where the focal point of our conversations is typically sex, be it trafficking or otherwise, with little to no focus on forced labor. I hope the same; that our conversation will begin to reflect the actual problems our society faces.

      Best!

  3. Jen Robinson

    Thank you for bringing to light the atrocities that we are still permitting to happen in our own country and in our state penitentiaries everyday. This is a new spin on modern day slavery and I am excited to educate myself more on the issue. Great article!

    • Briana Simmons

      Hello Jen,

      Thank you for reading the article and engaging! I agree this is an important issue that should be in the forefront of our minds. If you haven’t already, reading Slavery By Another Name by Douglas A. Blackmon and The New Jim Crow by Michelle Alexander is a good starting point for education on the prison industrial complex. Also, please continue to follow the work of the Human Trafficking Center.

      Best!

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