The Slavery Loophole: How the Nation’s Prisoners are Striking to End Institutionalized Forced Labor Permitted by the Thirteenth Amendment

CARLI RABEN—On September 9^th, as many as 24,000 federal and state prisoners in up to twelve states went on strike and refused to show up to prison jobs for what organizers are deeming “a Call to Action Against Slavery in America.” The Thirteenth Amendment abolished the practice of slavery in the United States with one caveat: except as a punishment for a crime. The strike is potentially the largest in American history, yet most news organizations have provided only nominal coverage. State and federal prisons do not readily open their doors to the press, and conflicting accounts from strike organizers and prison officials have made it difficult for journalists to confirm its magnitude.

That’s not to say the prison strike has gone unnoticed—the story was picked up by non-traditional news agencies. Vice News and Al Jazeera interviewed two of the currently incarcerated organizers of the Free Alabama Movement (FAM). Using contraband cellphones, Bennu Hannibal “Facetimed” with Vice News and Kinetic Justice called in to Al Jazeera from inside solitary confinement. According to Hannibal, “people are being locked up solely for the purpose of us being able to work for whomever the private corporation is that needs the labor.” Justice seconded and called prison labor “slavery by another name.”

Currently, 1.5 million people are incarcerated in the United States and estimates indicate at least half of those people have a prison job. One of the purposes of prison is to reform and rehabilitate members of society that have broken the law. According to Burl Cain, the warden of Angola Prison in Louisiana, prison labor has two clear benefits: it helps pay back a debt owed to society and it can correct deviant behavior with the potential for personal redemption. According to an adopted provision of the United Nations General Assembly, “[c]onditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country’s [labor] market and permit them to contribute to their own financial support and to that of their families.”

Despite some of the positive attributes of prison labor, the legal status of prisoners and the lack of oversight of prisons make exploitation of prison labor commonplace. Prison laborers are not protected under the Fair Labor Standards Act because they are not considered to be in an employee-employer relationship. Though state law differs, in some states prisoners that refuse to work receive write-ups, segregation, solitary confinement, or have time added to their sentences. Meanwhile, prison laborers are paid extremely low wages and in some states they are not paid at all. Thus, if injured on the job, no worker’s compensation exists to cover injuries, even those injuries that persist after release.

Since prisoners are not “employees,” corporations do not have to pay them a fair wage. Private industries are incentivized to employ prison labor as a cost-cutting measure; it may also contribute to unemployment because prison laborers take jobs that otherwise would be filled by unskilled workers that are not incarcerated. In 1992 in Hale v. Arizona, the Ninth circuit addressed this issue—whether prisoners should be considered “employees” for purposes of federal law—and initially found that they should be included in the definition before reversing its decision upon rehearing the case. A re-examination of the issue and a finding that prisoners are in fact employees would force private entities to pay prisoners a minimum wage and discourage them from exploiting prison labor.

Organizers of the prison strike are not the only voices calling attention to the Thirteenth Amendment. In early October, director Ava DuVernay released the documentary “13th” on Netflix. In the film, she traces how federal sentencing policies stemming from Ronald Reagan’s “War on Drugs,” Bill Clinton’s Crime Bill, and states adopting similar policies caused the prison population to rise from around 200,000 in 1974 to nearly 1.5 million today. The documentary’s thesis argues that the Thirteenth Amendment’s punishment “loophole” legalized slavery through prison labor and enabled contemporary mass incarceration.

Though the prison strikes have yet to gain the attention of conventional America’s collective consciousness, the attention paid to the strikes by alternative media outlets may be signaling the start of a mass incarceration deceleration. Prison strikes are not a new phenomenon, but up until recently journalists could not produce timely articles because of institutional and legal barriers preventing access to inmates. The clandestine forms of communication, contraband cell phones and social media sites set up to connect networks of strikers have allowed prisoners to coordinate across the nation on unprecedented levels.

Even if this wave of the strike is suppressed, the infrastructure built by FAM and the Incarcerated Workers Organizing Committee may be the groundswell needed for meaningful prison reform. FAM is calling for every state to adopt Freedom Bills with an emphasis on “Education, Rehabilitation, and Re-Entry Preparedness.” In addition to the proposed bill, organizers on the outside are launching phase two: a public boycott of yet to be named private industries profiting off of prison labor. The movement is slowly gaining traction and each day larger news outlets are reporting on the story. Meanwhile, the prison leaders of the strike, already in solitary confinement, are undeterred by attempts from prison administration to shut them down. Now may be the perfect time for reform.