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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone and now we continue with our series which we've launched in conjunction with the Green Space, called Punishment & Profit. The question guiding these segments is who profits when people get put away? Every Tuesday evening through May 4th, the Green Space, in partnership with the advocacy group Worth Rises, is holding a virtual panel discussion about one aspect of the business side of the prison industry, and we are having a segment previewing those weekly discussions on Mondays or Tuesdays here on the Brian Lehrer Show.

We've talked about prison architecture in this series and design and companies that contract to fill vacancies and make training videos among correctional staff and today, we're going to talk about prison labor. Prison labor has been a part of the US economy since at least the late 19th century. Today, incarcerated people do everything from agriculture, to janitorial work, to building office furniture, making hand sanitizer, staff and call centers, and doing 3D modeling. It's a multi-billion dollar industry, but the average wage for an incarcerated worker is 30 to 60 cents an hour.

There are five states that do not pay incarcerated workers at all. Part of the reason states can pay little to nothing for labor is because of language in the 13th amendment to the US Constitution. Yes, the one that outlawed slavery and involuntary servitude, but it had a loophole. The 13th Amendment says, "Except as a punishment for crime, whereof the party shall have been duly convicted." That language has come to be known as the slavery loophole among critics who say slave labor is continuing inside our correctional institutions.

My next guest is Oregon Senator Jeff Merkley. He's one of the democrats in the US Senate leading the effort to amend the constitution to get rid of the so-called slavery loophole with a joint resolution known as the abolition amendment. Senator, it's so nice to have you on New York Public Radio. Welcome to our program.

Senator Merkley: Thank you so much, Brian, wonderful to be with you.

Brian: Why did the authors of the 13th amendment include the so-called loophole language in the first place?

Senator Merkley: Well, it's a good question. The record is incomplete, but certainly, a significant amount of lobbying primarily from Southern Democrats, that this would be a fair way to go forward is to allow slavery to continue for those who were convicted of a crime. I think very few really recognized at the moment that this would instantly produce laws that essentially became known as the Black Codes. They happened almost immediately thereafter, after the 13th amendment was passed, in which it became a crime to be Black. By that I mean, you could be arrested for the way you walked on the sidewalk, for speaking too loudly, for loitering, for being on a street after dark.

In other words, you could be arrested and convicted for any reason, enabling the state to essentially say, "Hey, we've got the power to continue slavery simply by arresting people for being Black, and then running them back into the slave economy." That's exactly what happened and it continued to all of the horrific effects of slavery. Fathers, mothers ripped away from their family, destroying the families, destroying the finances, the family, even children were sometimes rented back into slavery.

It's a very, very dark history, a history that eventually helped create the mass incarceration, helped deprive Black Americans of political power by taking away their right to vote, which was also a power of incarcerating someone. It helped drive the process that led to Jim Crow and so we see this reverberating through the ages as a deep injustice that continued after adoption of the 13th amendment.

Brian: The language in your Amendment says work programs and training opportunities for incarcerated individuals could continue, but not without consent. Can you talk about that distinction, with or without consent?

Senator Merkley: Yes, that's not the language, that is the description of the impact. The actual language is--

Brian: I'm sorry.

Senator Merkley: -to strike the slavery clause out of the 13th amendment, but people say, "Well, what does that mean can work programs continue?" Yes, they can continue. Oregon's work programs currently are voluntary, Oregon corrections proceeds to say they totally support it. Realize that there are some 20 states that also have this slavery clause in their state constitutions, and some have started to take it out. Nebraska has taken it out, Utah has taken it out. We're talking red states that have taken it out. Colorado has taken it out more of a purple to blue state.

Oregon is considering taking it out this very year. I certainly hope they will. There'll be a constitutional referral out to the voters. You essentially say some states though, do use private prisons that continue to use involuntary renting of people back to basically make money for the corporation or for the state. There is still significant exploitation with some estimated 900,000 Americans who are being rented out by the prison industry.

Recognize this, that this process of profiting off the renting out of prisoners helps drive mass incarceration because the prison industry benefits from the profits from renting people out so then they lobby for Three Strike laws and get tough on crime laws in order to get more people in prison, which always ends up bearing disproportionately on communities of color in the United States.

Brian: Now, skeptics might point out the modern prison labor doesn't actually draw its authority directly from the 13th amendment, so in the states that have done away with the similar clauses in their state constitutions, has there been any functional change in those states regarding prison labor?

Senator Merkley: Good question and we don't have an analysis yet. It's very new for the three states to have struck down this clause, but in my understanding is those states they are continuing with voluntary work programs. Work programs are highly beneficial and this isn't to do away with work programs, but if you're being assigned a program that is horrific, you could as a prisoner say, "No, I'm not going to do that." Well, then that puts a check on unsafe practices, you're being exposed to terrible chemicals, you're exposed to hazards because the safe and healthy practices aren't required in these settings.

It gives some balance to that equation, but most prisoners like the idea of participating, because it makes the day shorter, gives them structure to their lives, allows them to get outside of their cell, allows them to develop training that may be useful when they're out of prison to be able to get a job. Retains all those healthy aspects in these states that have obliterated their slavery clause.

Brian: Although prison labor stems from the racist stashes of convict leasing, as you were describing before, the more modern defense of the practice says, as you were alluding to, that work gives incarcerated people purpose in many cases, and I gather there is a 1979 law, which allows some private companies to hire prisoners but requires them to pay a prevailing wage. I wonder if there are positive models for prison labor happening right now in the United States that you endorse?

Senator Merkley: I think the idea of being able to be paid a significant wage enabling prisoners to prepare for the transition out of prison, makes some significant sense. I'm looking forward to having hearings in which we explore those positive models. One of the big challenges that drives re-incarceration and basically, recidivation that is people committing crimes again when they leave prison, is they have no resources, they've lost their connections to friends and family and they have no ability to have the money to buy or rent an apartment or buy their groceries.

Being able to build up some savings before you leave prison might greatly facilitate success in leaving prison, which is good for everyone. You don't want to encourage a situation where people feel like their last resort is committing another crime, that hurts everyone.

Brian: You mentioned before lack of occupational safety and health protections for prison laborers and I didn't know that until I was reading in on your amendment. That's shocking to me because I gather the IRS says inmate laborers are not employees and so, therefore, the Occupational Safety and Health Act and the administration of-- The agency called OSHA and the federal government, the Occupational Safety and Health Administration, their standards, don't protect prison laborers. Do I have that right and is that absolute?

Senator Merkley: Yes. You have that right.

Brian: That's shocking. Would your amendment correct that or would that take a separate law?

Senator Merkley: It certainly would give some leverage. It isn't clear that it would modify that directly, but it enables prisoners who are being exposed. Say they're being exposed to asbestos, which amazingly is still used in American production, or to other chemicals without a proper mask to prevent your contamination or some other thing that the prisoner says, "Now, this is really a bad idea. I shouldn't be in this situation that's going to destroy my health."

They'd have the ability to push back and say, "I'm sorry unless we improve these working conditions I'm not accepting this work." I should note that in some cases I'm sure that people are entering into jobs where they're being essentially rented out to companies that are providing the same work conditions that they have for other employees. It's not that every job is dangerous. It's just there is no protection for a prisoner from a dangerous situation.

Brian: We just have a couple of minutes left with US Senator Jeff Merkley of Oregon, one of the Democrats leading the effort to amend the constitution to get rid of the so-called slavery loophole in the 13th amendment with a joint resolution known as the Abolition Amendment. Senator, how realistic is it that this amendment could get passed? I think it takes, let's see, tell me if I've got my civics right, two-thirds of the majority of both the house and the Senate followed by three-quarters of the states to ratify a constitutional amendment.

Senator Merkley: It's exactly right, but it's very rare. What I'm encouraged by is worth the start of an important conversation. A conversation that has involved Republican States like Nebraska, like Utah, other states are starting to go, "Oh my goodness, we didn't realize we had this in our constitution." There'll be a series of state discussions that will help pave the path for it. We will have results from those states, which we can take to the federal conversation and say, "Your fear was that X, Y, Z," those fears did not happen when states changed this law.

It's making these work programs better, stronger, more significant health and safety protected, helping prisoners develop some savings for success when they leave prison, the effects have all been positive. We need to develop that record in order to be able to have a conversation that has some chance of getting three-fourths or two-thirds of the house and Senate, and then three-fourths of the states.

We're at the beginning of that, but recognize this, we just had a year in which talked a lot about systemic racism. Here we have a hugely powerful clause in the constitution that has driven systemic racism from the end of the civil war forward. Remember as I pointed out, it's one of the factors that is driving mass incarceration because of the private prison industry still profiting from running out prisoners. Changing this is not symbolic. It will have real effects, real positive effects, and in this national conversation about systemic racism, wouldn't it be great to eliminate this glaring atrocious slavery clause out in 13th amendment.

Brian: Senator Merkley, we really appreciate your time. Thanks so much for coming on with us and sharing this.

Senator Merkley: Thank you. Pleasure to be with you, Brian.

Brian: Brian Lehrer on WNYC and we're going to continue this for a few more minutes with your phone calls and with Bianca Tylek from the group Worth Rises. Listeners, tell us a story if you've ever been incarcerated and did labor in conjunction with that, what kind of work did you do and how much were you paid? The topic is prison labor, and we're inviting your personal experiences. 646-435-7280. Did you find the work to be a respite from other parts of being in prison or was it part of the punishment? 646-435-7280. Call in and tell us about the work you did while you were incarcerated.

How much money you left with in your pocket, if any as a result of that 646-435-7280. What you thought about the pay or working conditions. A few more minutes on this topic with your calls and Bianca Tylek 646-435-7280. For those of you who've been following the series Prison & Profits that we've been doing early in the week, Mondays or Tuesdays on the show, this winter in advance of these Tuesday night Green Space events, you know that Bianca has been coming on with us Worth Rises Executive Director, as we follow along with the topics that they're going to do and their Tuesday night Green Space events and it is Prisons & Profits and Prison Labor tonight in the virtual Green Space had the greenspace.org. Hi, Bianca, welcome back.

Bianca Tylek: Hi, how are you, Brian? Great to be with you again.

Brian: I know you put out a report about this and your report as does the series as we know from the title, Prisons & Profits your report follows the money. Can you give us a sense of the range of products on the shelves that are made at least in part by prisoners that people may not realize when they buy them?

Bianca: Sure. I really enjoyed your conversation with Senator Merkley who we've been working with at the Abolish Slavery National Network, where I serve on the core team and Worth Rises also is engaged working on this federal site to bring a new amendment to the US constitution. In terms of prison labor, I think the important thing people really do need to understand is that we often think about prison labor as it relates to private sector and corporations, but that's actually not where the bulk of prison labor is happening.

More than 95% of prison labor is happening for state and federal government. When we think of prison labor we have to think about really three main buckets. The smallest of which is actually private corporations that are directly using private labor. They are to some extent regulated by federal law, you mentioned earlier the 1979 act that expanded the reach for private sector into the prison industry. Today we estimate around 5,000 people are actually regulated by that act, that are currently incarcerated working for private corporations.

A lot of those products, and there are a lot of jobs that are not actually captured and regulated. That 1979 law actually only regulated actual products that are manufactured that made it into interstate commerce, meaning they cross state lines. In fact, agriculture is not regulated by that law and neither are services. As you talk about things that have made it into our home, in fact, quite a number of our agricultural products everything from bell peppers and onions, tomatoes are arriving here from farms on prisons.

That I think was even exacerbated during the last administration because one thing that people may not be aware of is that it's estimated that as much as 70% of farming labor is actually undocumented. When zero tolerance was announced a lot of those farms turn to prisons to meet the gap in labor. Agriculture is another piece that's not really tracked but is definitely making its way into private sector and services. Things like call centers.

If you saw during the race for the presidency, Mike Bloomberg made big headlines for using campaign calling services that actually were like campaign calls that were being made out of a prison. Those types of services are often not captured by that legislation, but quickly the two others in the much bigger aspects are-- They are corporations run by state and federal governments. The federal corporation is called UNICOR. In New York, for example, the state corporation is called Corcraft. Those corporations which, again, are state-run corporations are actually manufacturing products for other state agencies.

For example, the Department of Motor Vehicles or Department of Transportation. In fact, in New York, most of our street signs, most of the things in the MTA, subway stations in New York City are actually made through prison labor inside of our prisons and jails. Those kinds of products that you're actually interacting with every single license plate in the state of New York and most across the country are made by people who are incarcerated.

That is a really big piece of the puzzle of things that are making into your home. Then as I said, the very last thing and the largest bucket are those that are simply all of their work is maintaining the carceral structure. So those are the janitors, those are folks who are working in the kitchen and the cooks, those are laundry services. All of those different services that are operating inside of facilities are also part of the prison labor infrastructure.

Brian: Let's take a phone call. Here's Donald in Yonkers, who says he helped to train prison laborers to work at a supermarket. Hi, Donald, you're on WNYC. Do I have that right?

Donald: Yes, right. Yes, Brian, I worked for A&P years ago. They had a program where they would take people from different prisons in New York State, who had a good record, and let them out early, and they would come to work. I guess, they found a shelter form and all, but they would work. The job was paid half their salary by the state, and half by their company.

I was a department manager of Deli and Bakeries, and I would train these people on not just the job, how to have a future, not just collecting carriages or a clerk or something, stocking shelves, and they did pretty good. I taught them how to do scheduling, and ordering, and rules of the company. A couple of them went to the meetings with me, department managers have meetings like once a month. I had five people over about two years, and I trained them. Two of them are still working for Acme now because a lot of the A&P stores are Acme now.

Brian: Right, Donald, thank you very much for that story. That's a relative success story, as Donald sees it from the point of view of somebody who trained some prisoners to work in A&P supermarkets, and he says they helped prepare them for the workforce when they got out. How do you feel about that Bianca? Do you think that that's a model that should continue to be used in the right ways?

Bianca: Yes. To clarify, he wasn't actually training people who are incarcerated, what Donald said was that he trained people who were released, and like who were presumably in some parole situation, and were maybe living in some transitional housing. I heard him say they found them housing. I think that's different. That's like reentry services and reentry work, it's really different when we're talking about people who are actively incarcerated.

The spirit of your question, Brian, which came up earlier, which is like, "Do folks inside want to work, and what are those sentiments?" I think there's no doubt that people want to feel empowered by what they can do on a day-to-day. I think the notion that anyone's buying for current jobs inside is just not really accurate because it's misinformed by the fact that there is an incredible amount of deprivation inside. Having people fighting over jobs that pay 60 cents an hour, is wildly dehumanizing.

I think the only reason anyone is really competing for those jobs is because that's the only option. At the end of the day, those are the only options. I always tell people when they make comments about things-- People choosing and things being better, it's like would people have chosen Jim Crow over slavery. Sure, does that mean that's where we should be landing? No. I think what exists currently in our facilities across this country is not equitable. It's not fair. It's not justice. It's not humane. It's not dignified work in any way. Those are the things that we're trying to change and through our work, and by abolishing the exception to the 13th amendment that allows for forced labor.

Brian: Let's take another person's personal experience. Joe in Queens, you're on WNYC. Hi, Joe. Thank you for calling in.

Joe: Hi. How are you doing? Big fan of the show.

Brian: Thank you. [crosstalk] Go ahead.

Joe: Yes, I was incarcerated from 2009 to 2012 in the New York State prison system. I remember getting paid around 14 cents a week, and that wasn't enough to buy a honey bun. That wasn't enough to make a phone call. I had to rely on my family to donate money into my account so I could buy snacks and stuff. Also, when I was released, I was in upstate and Watertown near the Canadian border, and I was dropped off at a bus station with $40, and just told take the bus home and I live in Queens. Luckily, I've been okay on the success story. I've been out and staying clean and everything since 2012.

Brian: Bianca, did you want to ask Joe anything?

Bianca: No. Joe, thank you so much for sharing your story. Can you actually maybe lean in a little bit more because I think you raised a really important point about the fact that being imprisoned itself is not free. People think right that like, you go to prison, everything's provided, so why should we pay people who are incarcerated? But the reality is that being in prison is actually very expensive. You're actually overcharged for all these items and underpaid. Can you speak to that a little bit more about maybe commissary and the cost of calls and what that all meant to you and your family?

Joe: Yes. Anytime I would go to commissary, I would call my mom. At the age of 27 asking money from my mom was a humbling experience, but luckily my family they're very supportive, and they love me. They were okay with giving me money, but I still felt a little bit of a burden. It would have just felt a lot better if I could just work and sustain myself.

Brian: Joe, when you said 14 cents a week, I'm sure people's ears perked up, and they said, "Oh, what do you mean 14, you can pay somebody 14 cents a week, that can be a real number." What do you mean 14 cents a week? Under what structure was that?

Joe: Yes, I was getting paid for doing janitorial building maintenance type work, cleaning up, mopping, doing grounds work. A lot of times, the amount of time spent working would only accumulate 14 cents for the whole week, and I would still be working every day. There's no like clocking in, clocking out. It was just-- I'm not sure if it was a set rate or what, but I do remember getting specifically 14 cents for multiple weeks. Like it wasn't like a one-time thing. Sometimes I would get closer to like 80 cents, or 70 cents for the week, but it was a frequent occurrence getting low cents for a week. [unintelligible 00:27:45]

Brian: Well, I'm glad you said you're a success story now and doing well. Thank you for sharing that experience. It's very illuminating for people who haven't had similar experiences themselves. Joe, thank you, call us again. Another one. Jay in Mahwah, you're on WNYC. Hi, Jay.

Jay: Hi, Brian, a big fan of your show. I was in a federal prison. There we were paid 12 cents an hour, and to put that in context, to make a phone call was 23 cents a minute. Think how long you have to work just to be able to make a 15-minute phone call. If you look on the Bureau of Prisons website, they encourage keeping in touch with the family, but it's very hypocritical if you are going to pay someone 12 cents an hour.

Also, the senator was talking about the safety issue. In my prison, which is a very old prison, there was a ton of asbestos, and a lot of the inmates were responsible for fixing the bathrooms and, the plumbing. They were exposed to asbestos all the time. If they were going to refuse to do that, they would just be thrown into solitary confinement and be left there until it's all sorted out.

I think the bigger point is that 98% of prisoners are going to be coming out of prison. It's about time that America recognizes that it's time to invest in setting these people up for success, rather than setting them up for failure.

Brian: Jay, thank you so much for your call. We really appreciate it. Bianca, in our last few minutes, to cycle back into the interview with Senator Merkley and his proposal to amend the 13th amendment to the constitution which outlawed slavery because it has a slavery loophole that allows slavery for punishment of a person duly convicted as a crime, how relevant think that is to solving all the prison labor problems that your group has been focusing on? Is that more symbolic because the 13th amendment isn't really used as the justification for prison labor around the country, or do you think that's important?

Bianca: It's a great question. I think it's absolutely important. I think it's important from a ethical standpoint or a symbolic standpoint and from a legal standpoint. The reality is we have to ask ourselves, we need to really look ourselves in the face, or look each other in the face and say, "Is there any situation under which it is okay to enslave people?" If you ask yourself that way, I think it's hard for anyone to say yes. I don't care what the-- That situation is some extenuating circumstances, it's okay for us to enslave people.

The answer is no, as we hope and expect that it is for most people. Then, it's time that we get rid of any exception, and we don't turn around and we can't say there's any world in which it's okay for what we did and the original sin of this country to persist. I think that's the first step, but I think the second step is that it is more than symbolic. The question is when you establish a right for people, you then beg the courts to clarify that right.

When the 13th amendment passed and the 14th amendment passed and the 15th amendment passed, so amendments don't actually change anything in that instance, what they do is they establish a right for people to bring that in front of the courts and for the courts to then decide, our judiciary bodies in this country to interpret that and say, "Does this qualify slavery and what should we do about it?"

I think there's no doubt that forced labor, I think what James brought up at the very end, the notion that people can be thrown in solitary confinement or lose access to phone calls or visits with their families because they don't work in what are incredibly dangerous jobs as he was mentioning exposure to asbestos. In fact, in New York, there's actually an entire team of incarcerated people in New York that do asbestos in basements for the state for $1 a day.

Those types of roles and asking the courts to interpret that and say, "This's slavery," and this slavery when they're forced to work and it's slavery when they're working for a few cents an hour in five states, as you mentioned earlier in the show, Brian, not being paid at all. I think there is grounds and that was a question I know you asked the senator earlier about what's happening in Nebraska, Utah, and Colorado.

Well, in Colorado, there are attorneys thinking about what litigation is now available to us to start bringing our values into reality. We think it's an incredibly important site and it's a long site, but we hope that we can move this and have it ratified in under 309 days, which was the amount of time it took to ratify the 13th amendment.

Brian: Tell us what's going to happen and the Greene Space event tonight. This is a virtual Greene Space event folks that you can access from any computer. That's going to follow up on this theme. I'm curious if you're going to talk about this paradox in New York State at the moment, that early on in the pandemic and a lot of listeners don't know this, the state unveiled a line of hand sanitizer.

The goal was to tamp down on price gouging by flooding the market with hand sanitizer, but people were quick to point out that the hand sanitizer was made by the state company Corcraft, which employs prisoners. The paradoxical point was also made that likely prisoners couldn't use the sanitizer themselves since they're prohibited from using products that contain alcohol. Is that all factual? That's something I read.

Bianca: Yes.

Brian: What are you going to be doing at the Greene Space event?

Bianca: Sure, let me answer that second part first. Everything you said there is accurate. I think the one thing I'd say is that when Governor Cuomo came out and started talking about all this great hand sanitizer, it was almost like a parody. Like a satirical commentary when he had this big table with all these piles of buckets and bottles of hand sanitizer, and he was joking about how it smells better than Purell's sanitizer. It's lavender-scented and it's cheaper.

He was threatening the private market that if you don't check your prices, we're going to put our product on. Never mentioning that and even mentioned how much it cost, it's 68 cents to make. Never mentioning that it was being made by people who are inside or as you said that they weren't allowed to have hand sanitizer themselves. I would take that a step further, that actually New York State had an around-the-clock factory during the peak of the COVID crisis, actually, in three eight-hour shifts throughout the entire 24-hour day.

They had moved everyone who was working in that factory into one unit and were literally rotating them through the factory and hand sanitizer, as you can imagine, actually requires a tremendous amount of ventilation, which we heard repeatedly was not really afforded to folks. They had Fire Department people in there regularly, consistently because of the threat of danger, the explosiveness of hand sanitizer, and all of that, but it's also not unique.

It's not unique to this moment, it's not unique to New York State. People who are incarcerated have been helping states out of emergencies forever. From the current crisis, there's people who are making masks and hospital gowns and all of those things all over the country. We documented in at least 40 states that incarcerated people were helping with pandemic PPEs. I also remember the wildfire stories in California of incarcerated people who are helping put out wildfires.

They've also been used to generate revenue. Cuomo, in particular, has a great love affinity with prison labor. He put out a plan two years ago to make everyone in New York State get a redesign of the license plate and get a new license plate as a revenue plan. Well, that only made money because everyone who was making license plates was incarcerated and paying cents on an hour. It's a very common thing that our state is being in many ways supported by prison labor through our crises and through our gaps.

Brian: Bianca Tylek, Executive Director of Worth Rises. More at the greenspace.org tonight. What time?

Bianca: At seven o'clock. It'll be great. We have some really awesome panelists coming.

Brian: Prison. Let me get it right. Punishment & Profit. I've said it wrong before.

Bianca: [laughs]

Brian: The series is Punishment & Profit, Tuesday nights in the Greene Space through the beginning of May and weekly on this show, previewing each episode. Thanks for coming on as always.

Bianca: Thank you so much, Brian. Take care.

 

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