A Look at Prison Labor as a Tool of Control
What might incentivize a government to adopt the use of Prison Labor? A State benefits from the use of Prison labor as (1) a tool of control (i.e. a method of re-education for society), and (2) market incentives from the global demand for Non Citizen bodies. Prison labor has been used by a variety of governments, for the above reasons. Here, we can look at some similarities in the use of prison labor in the United States and the People’s Republic of China[i].
Prison Labor[ii] is used here as a generic term to encompass the various forms of forced labor by people who are incarcerated or detained by a state.[iii] Here, we take a look at its use in the United States of America and the People’s Republic of China. Between “Prison Labor” and “Forced Labor,” China distinguishes between Criminal Sentencing and Administrative detention. An individual is incarcerated (Prison Labor) if they are held due to a criminal sentence. Under administrative detention, the individual is only detained in the labor system (forced labor), but not technically a prisoner. This distinction comes into play when granting protections under the state’s employment laws. Likewise, in the US, there is the same distinction between prison labor by incarcerated workers, and detained migrants exploited into situations of “forced labor.” Again, the distinction matters when seeking protection and rights under employment law.
The US and China share the additional use of criminal punishment as a tool to signal control in society. As a method of re-education, the use of prison labor in China has been as forthright as “re-education through the labor system.”[iv] Comparatively, although less direct, the pursuit of societal control through prison labor is also found in the US. Drawing the same parallels where the “re-education” aspect of prison labor is less for the individual’s rehabilitation, and more so to educate society. Both systems distinguish the criminal as a deviant from society and being outside of society, the criminal is outside the state’s protection—while in the state’s care. Lastly, when it comes to market incentives, prison labor is a billion-dollar industry. There is a global market where “Non Citizen Bodies” may refer to, but is not limited to, documented and undocumented migrant labor. They are vulnerable to labor exploitation because they are deprived of the protection of the state (under employment law) while under the state’s care (incarcerated or detained).
(Re)Educating Society with Prison Labor
Theoretically, society justifies punishment by alluding to its purpose in: deterrence, retribution, rehabilitation, restitution, and incapacitation. A leading sociologist of crime and punishment[v], David Garland describes an additional purpose, criminal punishment, as an authoritarian tool to signal control—“that crime is an aberration” and this segregates the criminal from the rest of society.[vi] Distinguishing the criminal as a deviant from society is an educational tool of the State. This additional use of criminal punishment establishes “a kind of sentimental education, generating and regenerating a particular mentality and particular sensibility” in society.[vii] The educational purpose is distinguished from “deterrence” because it is not just the punishment that is the tool, it is the criminal justice system and its ritual in trial, sentencing, and execution of punishment as a “formalized embodiment and enactment of the conscience collective,” that is, what we believe to be what our representative governance calls for.[viii] The “international leasing” of inmates and prison space in the Belgian-Dutch Prisoner Exchange was a result of normalizing the prison labor industry— an intended product of the State’s sentimental education.
The utilization of criminal punishment as a tool of societal education shares parallels with another giant in the forced labor industry, the People’s Republic of China. In 2017, the US-China Economic and Security Review Commission identified three key challenges to US Exposure to Forced Labor Exports from China. The Commission identified: “difficulty of meeting verification requirements for prison labor products and inadequate cooperation offered by Chinese authorities, the status of the re-education through labor system, and exploitative virtual labor.”[ix] Of the three, we will focus on the status of “re-education through labor system.”[x]
As the global stage is being prepared to normalize forced labor for the incarcerated, the segregation of society from the state-determined deviants broadens. Historical trends indicate that marginalized communities are particularly at risk, classified as “deviants,” and thus somehow are deserving of their punishment. Vulnerable groups include, but are not limited to, the LGBTQ community, non-majority ethnic groups, and sex workers. One of the demands of the National Prisoners Strike, a 19-day strike in response to the 2018 riot in Lee Correctional Institution[xi], was a call for recognition of the disproportionate incarceration of people of color.[xii] The strike also called attention to the disparity between compulsory prison labor where laborers earn as little as 4 cents an hour[xiii] for a multi-billion dollar, for-profit prison industry.[xiv]The US is estimated to have nearly 2.3 million people serving time.[xv]Recently, a United Nations Panel estimated nearly a million Uighurs, an ethnic minority in China, are being detained in reeducation programs in Xinjiang, China.[xvi]
China’s Re-Education through Labor System (RTL) was officially abolished in 2013 and replaced by the Custody and Education Centers (C&E). Asia Catalyst, a nonprofit based in New York, reported the new C&E system as “almost identical” to the abolished RTL. They share similar themes of punishment for the sake of “education” and clients are detained for long periods of time without any form of judicial oversight with forced labor. [xvii] Similar to debates over the RTL system, Zhu Zhengfu, Vice President of the All-China Lawyers Association and a member of the Chinese People’s Political Consultative Conference, proposes a Constitutional Review of C&Es because he argues that C&Es are legally at odds with Legislation Law and legislative jurisdiction.
Comparatively, in the United States, prison labor is constitutional as “Penal Labor” under the Thirteenth amendment. Where the Thirteenth Amendment forbade slavery and involuntary servitude, it left a convenient exception for “punishment for crime whereof the party shall have been duly convicted.”[xviii] Harking back to the justifications for criminal punishment, labor was seen as an apt punishment. Although Levin may examine the prisoner as “the worker,” the United States courts have distinguished the prisoner from the definition of “employee” under the FLSA. [xix] The court continues to hold in various cases that prison labor, voluntary or not, is not an employment relationship within the meaning of the FLSA. [xx] Stateside, the prison laborer is not entitled to employee protections under the law from safety to wage protection. The US distinguishes the status of the incarcerated worker in prison labor from the status of an “employee” and therefore deprives them of protection by the state granted under employee law, while in the state’s care.
Prison Labor and the Global Market for Non-Citizen Bodies
Benjamin Levin[xxi] examines the Belgian-Dutch prisoner exchange through multiple lens, one of which is “democracy, sovereignty, and the role of community in criminal punishment.” In 2009, Belgium agreed to send Belgian inmates to Dutch prisons in the Netherlands in exchange for a yearly payment. Viewing the prisoner as a worker, Levin questions the role of prison labor and its relationship with transnational labor and also the practice of leasing inmates and prison space. [xxii]Additionally, Levin examines the frame with a question of exceptionality, whether the global market possibility of prisoners be viewed as something conceptually new and distinct or simply a repackaged and just an exploitative version of the domestic incarceral institution. Furthermore, Levin examines the “role of prison labor in the United States and the potential doctrinal relationship between its regulation and the treatment of transnational labor.
Categorizing detention, a formal sentence to forced labor can be imposed by a court in a criminal sentence in the People’s Republic of China. This is separate from Reeducation Through Labor (RTL) which is a form of administrative detention, imposed by officials where no legal due process is required. The government defines RTLs are distinct from prisons and therefore, the labor prescribed is not prison labor. However, the US Commission rejects that definition and defines all forced labor detention facilities in China to be prison labor facilities. [xxiii]
Similar to China’s distinction between Criminal Sentencing and Administrative detention, the United States also insists on distinguishing between the forced labor of citizen inmates and the utilization of deprivation schemes for “voluntary” work by detained noncitizen bodies. A class-action lawsuit (detainees at the Stewart Detention Center) against CoreCivic (a billion-dollar private prison industry) alleges the practice of “deprivation schemes” where detainees are deprived of basic necessities to incentivize labor.[xxiv] Where China distinguishes between criminal sentencing and administrative detention, the United States distinguishes between due process for a Citizen and non-Citizen. Akin to the Belgium-Dutch prisoner exchange, there is a market for noncitizen bodies in the global market. Unlike the cooperative leasing of bodies by both States in the Belgium-Dutch Exchange, the United States unilaterally detains immigrants and operates a system of forced labor. Many of the detained immigrants “accede to deportation simply to escape intolerable conditions of confinement, even when they have valid claims to remain in the United States,” [xxv] such as asylum.
With similar motives in societal education and profit behind their prison labor systems, where do the US and China lie in respect to one another’s use of Prison Labor? The 2008 Memoranda of Understanding Between the US and China Regarding Prison Labor recorded a hearing before the US-China Economic and Security Review Commission.[xxvi] The Commission found that the degree of non-compliance by China and the degree of enforcement by the US resulted in a bilateral unwillingness to pursue the issue of prison labor. [xxvii]Commissioner Wessel found that under the MOU and the SEC, the US was within their rights under the Trade Agreement to detain disputed products. The 1992 Memorandum of Agreement (MOU) was an agreement that prison-made products will not be exported from China to the United States. The 1994 Statement of Cooperation (SOC) follow up and elaborated on the investigation and resolution procedures for these alleged cases. Pursuant to the MOU, if the US has reason to believe a product facility is a prison they may request information about the facility. Pursuant to the SOC, if the Chinese government does not respond within 60 days, the US may detain products. However, the Commissioner found that the US was not detaining products under this reasoning despite having the tools to do so. Although China’s non-compliance (failure to respond in a timely manner[xxviii], deferring to local authorities, etc.) contributed to various open and unresolved cases—the Commissioner found that the cases were being unresolved as a result of the unwillingness by the US to pursue the matter as well. In current day affairs, advocates call on the US “to restrict the financial assets of Chinese government officials”[xxix] involved in the repression of Uighurs in Xinjiang. However, it is indeterminable whether the US will be willing to act.
[i] Prison labor in China is also known as laogai (reform through labor)
[ii] Also known as “Penal Labour”
[iii] The two are distinct in many ways, but for the purpose of this piece, “prison labor” is used as an umbrella term alongside “forced labor” in the context that both are used as tools of control and they have the same market incentives for the State utilizing them.
[iv] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2) (China distinguishes between Criminal Sentencing and Administrative detention.)
[v] David Garland is the Arthur T. Vanderbilt Professor of Law in the School of Law and also Professor of Sociology in NYU’s Department of Sociology. Considered one of the world’s leading sociologists of crime and punishment, he graduated from the University of Edinburgh with a degree in Law and with a Ph.D in Socio-Legal Studies; he has a Masters in criminology from the University of Sheffield. He has authored numerous award-winning books on crime and punishment and has been awarded doctorates from various Universities due to his contributions to the field.
[vi] Garland, David. Punishment and Modern Society, supra note 11, at 67-68 (emphasis added. Cf. Overton v Bazzetta, 539 U.S. 126, 143 (2003) (Thomas, J., concurring) (discussing the rise of the prison in the United States as a means of segregating “the ‘deviant’ (i.e., the criminal)” from the rest of society).
[ix] Bowe, Alexander. US Exposure to Forced Labor Exports from China: Developments since the US Trade Facilitation and Trade Enforcement Act of 2015. US-China Economic and Security Review Commission (2017).
[xi] Lee Correctional Institution is a maximum security prison in South Carolina, US.
[xii] Press Release: National Prisoners Strike August 21st – September 9th 2018. Web. https://www.dropbox.com/s/r5cr546jlscgkhj/Prison%20Strike.pdf?dl=0
[xiii] Citing a report by The Associated Press on the hourly rate for prison labor in Louisiana for inmate construction work.
[xiv] Barron, Laignee. Here’s Why Inmates in the U.S. Prison System Have Launched a Nationwide Strike. Time Magazine. 22 Aug 2018. Web. http://time.com/5374133/prison-strike-labor-conditions/
[xv] Wagner, Peter and Sawyer, Wendy. Mass Incarceration: The Whole Pie. Prison Policy Initiative. 14 Mar 2018. Web. https://www.prisonpolicy.org/reports/pie2018.html
[xvi] Cumming-Bruce, Nick. U.N. Panel Confronts China Over Reports That It Holds a Million Uighurs in Camps. New York Times. 10 Aug 2018. Web. https://www.nytimes.com/2018/08/10/world/asia/china-xinjiang-un-uighurs.html
[xvii] Asia Catalyst, “‘Custody and Education’: Arbitrary Detention for Female Sex Workers in China,” 7 Dec 2013. Web. http://www.asiacatalyst.org/wp-content/uploads/2014/09/AsiaCatalyst_CustodyEducation2013- 12-EN.pdf
[xviii] U.S. Const. amend. XIII, §1.
[xix] Bennett v. Frank, 395 F.3d 409, 410 (7th Cir. 2005). See also, Tourscher v. McCullough
[xx] See also, Danneskjold v. Hausrath, 82 F.3d 37, 44 (2d Cir. 1996) (“[P]rison labor is not in all circumstances exempt from the FLSA and that an economic reality test is to be used in determining whether payment of FLSA wages is required.
[xxi] Benjamin Levin is an Associate Professor of Law at the University of Colorado Law School. https://lawweb.colorado.edu/files/vitae/levin.pdf
[xxii] Levin, Benjamin. Inmates for Rent, Sovereignty for Sale: The Global Prison Market. Southern California Interdisciplinary Law Journal. 512. University of Southern California (1992)
[xxiii] Dotson, John and Vanfleet, Teresa. Prison Labor Exports from China and Implications for US Policy. US-China Economic and Security Review Commission Staff Research Report. 2014. (2)
[xxiv] Shoichet, Catherine E. Lawsuit alleges ‘forced labor’ in immigrant detention. CNN. 17 April 2018. https://www.cnn.com/2018/04/17/us/immigrant-detention-forced-labor-lawsuit/index.html Citing Barrientos v Core Civic, No. 4:18-CV-00070 (M.D. Ga. April 17, 2018). Web. https://projectsouth.org/wp-content/uploads/2018/04/Complaint-Barrientos-v.-Core-Civic.pdf
[xxv] Barrientos v Core Civic,. at 5.
[xxvi] US-China Economic and Security Review Commission. The Memoranda of Undersatnding Between the US and China Regarding Prison Labor. One Hundred Tenth Congress. 19 June 2008.
[xxvii] Memoranda of Understanding Between the US and China Regarding Prison Labor, at 49.
[xxviii] Some responses took up to a decade.
[xxix] Magnitsky Act provisions apply globally authorizing the government to sanction human rights offenders. This act is a bipartisan bill passed in 2012 intended to punish Russian Officials. This act was the subject of one of the Trump Tower Meetings in 2016 between lobbyist and Russian lawyer Natalia Veselnitskaya and Donald Trump Jr.