A Future Without Involuntary Servitude? In California, It's Long Overdue

T

he idea of prison labor was on my mind as I visited San Quentin last weekend.

After going through security, I and two dozen other journalists walked past the lower yard, where men in boxing gloves threw combos at each other and hoopers in grey shorts shot free throws. We spent hours at the prison’s media center watching film clips and listening to podcasts made by folks behind bars, like Ear Hustle and Uncuffed.

And during the lunch break, I asked a few people who are incarcerated about jobs in the prison.

One man told me he works in the media center for just 11¢ an hour. Another said he makes 14¢ an hour. Some teachers who lead programs don’t get paid at all. One person said he appreciates the structure employment brings, and noted that no matter how little it pays, any type of program or job is beneficial when it’s time to ask for parole.

Some people were happy that the CDCR raised pay rates for incarcerated laborers in April, an increase from 32¢-37¢ an hour to 64¢-74¢ an hour. (The cover of July’s print edition of The San Quentin News had a story about one negative impact of the pay raise: less jobs.)

In the past, I interviewed a woman who repaired the industrial-sized laundry dryers at the California Institution for Women in Chino while incarcerated. While teaching at Vacaville’s California Medical Facility, I met a man who did landscaping in front of the prison’s religious buildings. There’s a meat cutting facility at Mule Creek State Prison, and a poultry processing enterprise at Avenal State Prison.

Behind bars in California, people make everything from socks to American flags.

There’s plenty of potential occupations for people who are incarcerated. Some jobs are underpaid, and some don’t pay at all. But legally, every able-bodied person is supposed to work. It’s written in the state’s constitution as a form of “involuntary servitude” — or, as many see it: slavery.

This fall, if passed by voters, Prop. 6 would amend the state’s constitution to no longer require people who are incarcerated to work. Finally, 160 years after President Lincoln signed the Emancipation Proclamation, we have the opportunity to put an end to a direct remnant of this country’s most inhumane system.

How did we get here? Let’s start at the top: the federal government. As you might have learned in history class, the 13th Amendment ended slavery, right? Well, no.

It states:

​​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.

That exception (“except as punishment for crime”) creates a loophole for states to force people who are incarcerated to work without compensation.

The application of this exception varies from state to state. California is one of eight states where involuntary servitude is still a legal form of punishment for a crime. (There are eight other states where it’s explicitly stated that “slavery,” verbatim, is a legal punishment for a crime.)

With nearly 200,000 people behind bars, California has the most populous incarceration system of all 16 states where this form of punishment is legal. That massive amount of people working for free, or in some cases a few cents per hour, plays a valuable part in the Golden State’s economic system — one that generates the third-highest GDP in the United States.

Now consider that African Americans account for nearly one-third of all incarcerated people, but only 5% of the state’s total population. Do you start to see how slavery, far from being abolished, is actually alive and well?

“W

e’re not just simply trying to change the language,” says Paul Briley, Executive Director of Legal Services for Prisoners with Children, of involuntary servitude. “We want to change the practice.”

During a recent video chat, Briley gave me a bit of a history lesson on the roots of the issue in California.

It starts with California’s first governor, Peter Hardeman Burnett, a noted racist and slave owner originally from Tennessee. Burnett got into California politics on the tail end of the Gold Rush, after leaving Oregon, where he was also politically involved. While in Oregon, he helped the state legislature establish a lash law, which required people of African descent to leave the state or else face punishment in the form of whippings.

“(Burnett) wanted to create a white-only west,” says Briley, adding that Burnett also advocated for California’s Fugitive Slave Law, which put Black residents who’d escaped slavery at high risk of being sent back to Southern slave states. The underlying ambition of the law, Briley says, was to keep this new state’s Black population to a minimum.

In 1852, the same year California passed its Fugitive Slave Law, the state also established its first mainland prison, San Quentin.

“There’s a direct correlation between slavery and mass incarceration,” notes Briley. And so — aiming to abolish not just the language but the practice — “that’s at the core of our mission: dismantling the entire prison industrial complex.”

While the Fugitive Slave Law expired after three years, the state of California’s constitution still allowed for involuntary servitude, which stands to this day.

The mere allowance for involuntary servitude isn’t the only issue. The enforcement of involuntary servitude is problematic, too. This is outlined in California Department of Corrections and Rehabilitation’s (CDCR) Penal Code 2700, which dictates that every able-bodied incarcerated person must work. Whether waylaid by sickness, grief or other serious issues, people behind bars in this state must work or else face a Form 115 discipline report, a write-up added to their record, potentially resulting in a longer prison sentence.

“We’re not only trying to change the constitution, we’re not focused on symbolism,” says Lawrence Cox, during the same video call. Cox is the Regional Advocacy and Organizing Associate with the social justice nonprofit All of Us or None, an organization working “to create an airtight solution that prevents the exploitation of individuals who are incarcerated.”

The larger goal, Cox adds, is to separate the prison industrial complex from the rehabilitative apparatus of corrections. Which is significant to the CDCR, as the organization made it a point to add “rehabilitation” to their title in 2004.

“Rehab is about autonomy,” says Cox, adding that “healing from the traumas that may have caused individuals to commit the crimes that they’ve committed… has nothing to do with forced slavery.”

I

n addition to the lack of choice, the conditions incarcerated people are forced to work under are often perilous. Electricians work with live power lines that feed electricity to prisons, and firefighters work on the dangerous frontlines of wildfires. Much of this work is done with a severe lack of support for workers’ rights.

In June, the California Division of Occupational Safety and Health (CAL/OSHA) agreed to new guidelines regarding the rights of indoor workers at workplaces where temperatures reach 82 degrees or above. It’s an important measure, enacted during a changing climate, when everyone is impacted by increasing temperatures. The problem is: the legislation explicitly excludes people behind bars.

Dr. Tanisha Cannon, Managing Director of Legal Services for Prisoners with Children, believes that the labor done by incarcerated people, unpaid or underpaid, should technically qualify them as state workers. But they don’t receive any benefits or Social Security.

“Folks can work in state prison for 20 years,” says Cannon, “and then they get released and come home to $200 gate money.”

Cannon notes that the $200 gate money that the state gives people who’ve been incarcerated hasn’t changed since the 1970s. In Northern California, she adds, $200 covers about a week’s worth of groceries.

“If these jobs didn’t exist inside of prisons, (the state would) have to hire more COs and more electricians to run the prison,” says Cannon. “Prisoners are really running the prison system.”

And they aren’t getting paid fairly for it.

It’s important for everyone to vote, Cannon emphasizes. She wants to be clear that people with felonies, as well as incarcerated people in California, can vote. (Registering and obtaining a ballot is another hurdle.)

Given the theatrics of this year’s presidential election, Cannon understands how people can grow disenfranchised with the electoral process. Nevertheless, she and other advocates are still encouraging people to vote, “because there are some things on this ballot that are going to directly impact you and your community,” says Cannon.

And when it comes to voting on involuntary servitude and Prop. 6, Cannon says it’s particularly important, considering that the state has extracted wealth from Black communities for hundreds of years.

“If these same folks that are producing the labor were getting paid,” says Cannon, “this would extract wealth from those larger companies, and reinvest it in our communities.”