FEW ASPECTS OF THE NATION’S criminal justice system seem more nonsensical to the average person than the fact that incarcerated criminals do no work. With more than one million offenders behind bars — the vast majority of them young men in their prime work years — America asks its prison inmates to provide no goods or services for the society that supports them. Instead of contributing to their upkeep through meaningful labor, and learning self- discipline in the process, prisoners devote their time to appealing their convictions, roughing up fellow inmates, planning their next offenses, and more or less relaxing at taxpayers’ expense.
An estimated 90 percent of America’s prisoners are unemployed, although the merits of prison labor are well established. A 1991 study by the U.S. Bureau of Prisons found that employed inmates are half as likely to commit crimes once released as unemployed inmates. Employed inmates are also more likely to find work after their release and to find better-paying jobs.
Nevertheless, the federal government has essentially outlawed prison labor. As the Senate continues to mull over the 1996 crime bill, its members should move to repeal the handful of antiquated federal statutes that have had this effect. In addition to doing the country a major service, this would provide a winning issue for Republicans, who must answer to a public still concerned about crime and rightly upset over the current system of inmate idleness.
Prison labor was effectively eliminated by federal statute 50 years ago at the behest of organized labor. Before then, the United States had a robust history of employing prisoners for menial farming and factory tasks. Early Americans supported prison labor because it provided operating revenue for prisons and because they thought it encouraged offenders’ spiritual reformation. Work, it was believed, eliminated opportunities for inmates to get into trouble. Work gave them direction and ate up otherwise idle time, all the while demonstrating the fruits of productive labor.
The unassuming preachers who spearheaded prison reform in the 18th and 19th centuries would surely see in the violence and sexual predation common in America’s prisons today stunning evidence for the platitude that “idle time is the devil’s workshop.” Western societies have recognized this truth at least since ancient Athens, where Solon made idleness a criminal offense.
When the first prisons were established in America at the end of the 18th century, Americans sensibly drew from this heritage. The penitentiary at Auburn, New York, was the first to require work rom its inmates. In 1825, Kentucky became the first state to adopt the so-called lease system, by which inmates were permitted to work outside the prison in chain gangs and the like. By the end of the 19th century, more than 70 percent of American inmates were employed.
But because inmate labor competed with low-skilled workers, and because those workers could vote, prison labor eventually encountered strong political opposition. The grumbling was already audible by 1853, when Andrew Johnson, then governor of Tennessee, responded by lamenting that the state prison had been converted into a “State Mechanic Institute” competing with free labor.
The growing clout of labor unions eventually impelled Congress to criminalize prison labor. In 1929, Congress passed the 1 Hawes-Cooper Act, which permitted states to bar the importation of prisoner-made goods. More significantly, the Ashurst-Sumners Act of 1935 made it a federal crime to knowingly transport prisoner-made goods in interstate commerce. The Percy Amendment in 1979 loosened these strictures only enough to allow prison labor if inmates were paid the “prevailing wage,” or union scale.
These laws remain on the books and are the reason inmates today are sentenced to idleness. Prison labor, once viewed as indispensable for restoring a healthy relationship between the criminal and society, has, in most cases, literally become a federal offense. The original conception of the penitentiary as a place where offenders could learn self-discipline through hard work has been turned on its head.
With the exception of work that generates goods for use by the state, such as license plates, and work remunerated at the union scale, which is rare, prison labor remains outlawed. This is so even though most of the low-skilled jobs that these laws were designed to protect now have been lost to foreign laborers.
By repealing the federal laws that prohibit widespread prison labor, Congress could restore a fruitful regime that once required inmates to pay for their keep and that showed some efficacy at turning criminals into disciplined, responsible citizens. Prison labor would also improve the health and spirit of the inmates themselves. When Gustave de Beaumont and Alexis de Tocqueville surveyed America’s prisons in the 1820s, they found the inmates grateful for prison labor. In their interviews with prisoners, they noted, ” There is not a single one among them who did not speak of labor with a kind of gratitude, and who did not express the idea that without relief of constant occupation, life would be insufferable.”
Last year, Sen. Spencer Abraham held hearings that looked into why American inmates have so much time on their hands. This was no small act of political courage, since Abraham hails from Michi gan, a state synonymous with unions, which have traditionally opposed prison labor. On the other hand, perhaps organized labor will be more flexible on this issue now that the better- paying less skilled jobs have fled to the other side of the Pacific Rim in blithe disregard for Depression-era protectionist efforts.
In any event, prison labor provides a potentially significant wedge issue for Republicans in the coming elections. Should President Clinton and the Democrats oppose repealing these laws and returning the issue to the states, they will reveal themselves to be shackled to yet another interest group whose agenda clashes with the desires of the vast majority of Americans. Even a president as rhetorically talented as Clinton will find it hard to argue that law-abiding welfare recipients should be required to work but criminals should not.
If prisoners are given the right incentives to work industriously, such as better living conditions or slightly reduced sentences, employers might once again invest in a population whose members are always on time for work and who can neither complain effectively nor quit. By deregulating prison labor and returning the issue to the states, Congress might well make prison labor as widespread and beneficial as it was when inmates were an important part of our economy — and, not coincidentally, when our streets were safer.
Andrew Peyton Thomas is an assistant attorney general for Arizona and the author of the book Crime and the Sacking of America: The Roots of Chaos.
