Prison labor and modern slavery - FreedomUnited.org

Prison fence

Prison labor and modern slavery

Prison labor, or penal labor, is work that is performed by incarcerated and detained people. Not all prison labor is forced labor, but the setting involves unique modern slavery risks because of its inherent power imbalance and because prisoners have few avenues to challenge abuses behind bars. Free prison labor, or work that is performed voluntarily, can be a valuable activity but it becomes exploitative when there are elements of coercion, force, and threat of punishment against detainees.

The line between free prison labor and forced prison labor is difficult to define. The International Labour Organization (ILO) lists several indicators of free prison labor which, if absent, could point to conditions of modern slavery. These include the right to written consent forms, wages and working hours comparable to those of free workers, and standard health and safety measures. The ILO states that these factors must be considered “as a whole” to determine if prison labor is forced.

The United Nations Office on Drugs and Crime (UNODC) discusses prison labor in its so-called Nelson Mandela Rules, which outline minimum standards by which to treat prisoners; rule 97 states that prisoners “shall not be held in slavery of servitude” and that they must be covered by the same wage, health, and safety standards as free citizens.

However, even where forced labor can be proved, concrete legal protections against it are severely lacking for incarcerated and detained people across the world.

The ILO’s own Forced Labour Convention, 1930 explicitly excludes prisoners from its definition of forced labor, allowing “any work or service exacted from any person as a consequence of a conviction in a court of law” as long the labor is enforced by a public authority.

With arbitrary detention common in countries such as China, North Korea, and Eritrea, this definition provides a clear loophole for authoritarian governments to legitimize the widespread imposition of forced labor on citizens. In China, for example, the widespread detention of Uyghurs and other Turkic and Muslim-majority groups has led to these persecuted groups being subjected to systematic forced labor, producing goods that are exported around the world. You can learn more and take action against this system through Freedom United’s Free Uyghurs campaign.

But even in democracies, forced prison labor occurs. The United States, which has the world’s largest prison population, aimed to abolish slavery with the Thirteenth Amendment of 1865. But the Thirteenth Amendment echoes the ILO’s definition by allowing involuntary servitude—in the form of forced labor—“as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Meanwhile, American labor laws such as the Fair Labor Standards Act exclude prisoners by classifying their working relationship as penal, not economic.  Incarcerated people are thus unprotected from forced labor. Activists have further pointed out that mass incarceration and racial profiling in the United States has led to African Americans being incarcerated at far higher rates than their white counterparts. With forced labor remaining legal as punishment for a crime, the legacy of slavery and racism persists in the U.S. industrial prison complex. In fact, organizers of a 2018 prison strike called their labor exploitation “prison slavery,” with inmates being farmed out to local governments and companies to perform labor for just pennies a day. The U.S. is one of several countries around the world where mass incarceration has in effect become an avenue for forced labor based with clear links to racial discrimination. Commentators have called the exemption of prison labor a “fatal flaw” in the 13th Amendment; indeed, almost immediately after its passing, states began to take advantage of it to continue to exploit black and brown communities. The practice continues to this day, with many major corporations complicit in using free, cheap, or exploitative prison labor in what has come to be known as the prison-industrial system.

Forced labor in immigration detention

The connection between prison labor and racial discrimination is also clear in immigration detention. Immigration detainees are at particular risk of modern slavery; according to the International Detention Coalition, immigration detention tends to have very little oversight and is among the most opaque areas of public administration” worldwide. This lack of oversight allows for widespread human rights abuses against immigration detainees—including forced labor.

In the United States, immigration detainees, including refugees, asylum seekers, and migrants, are especially vulnerable because they are often held by private prisons. Whereas over 90 percent of the American prison population is held in state-run facilities, more than 70 percent of people in immigration detention are held in private detention centers. Because they are for-profit and receive a fixed income from the government, these facilities are incentivized to cut costs and rely on detainees for much of their operation—paying them as little as a dollar a day. Freedom United is currently campaigning against CoreCivic—the second-largest private prison and immigration detention company in the United States—which has been the target of several lawsuits for subjecting detainees who have not been charged with any crimes to forced labor, sometimes even under the threat of being sent to solitary confinement .

The risk of incarcerated people facing forced labor is heightened dramatically during times of crisis. Amid the ongoing coronavirus pandemic, state governments in the U.S. have relied on prison labor for the production of essential medical supplies, including hand sanitizer and face masks. Prisoners face consequences for refusing to participate and typically earn less than a dollar a day, and are at high risk of infection given the low levels of sanitation and overcrowding in American prisons that makes social distancing impossible. The exploitative practices have been decried by critics as “nothing less than slave labor.”

In Libya, modern slavery has been widely documented at migrant detention centers used by the Libyan coastguard, which is generously funded by the European Union. Migrants and refugees that are intercepted as they attempt to cross the Mediterranean are returned to these detention centers, where they face forced labor among other human rights abuses. Racism plays a key role in these detention centers as dark-skinned migrants and refugees, largely from Sub-Saharan Africa, represent the majority of those subjected to forced labor in the North African state. Learn more and take action with Freedom United’s campaign to end slavery in Libya.

The dangers posed to immigration detainees are particularly troubling considering the fact that unlike other incarcerated people, many of those held in detention facilities while they await deportation or asylum hearings are in civil confinement, not criminal confinement. This means they have not been convicted of any crime. In other words, according to both the ILO’s Forced Labour Convention and the 13th Amendment, forced labor of immigration detainees remains an open legal question in many countries. Still, there are promising signs in the United States as the U.S. Court of Appeals for the Eleventh Circuit recently found that private immigration detention operators including CoreCivic are not exempt from adhering to the Trafficking Victims Protection Act – a federal law that prohibits the use of forced labor.

Regardless, whether technically allowed by the law or not, no human deserves to be subjected to forced labor. All people deserve to be treated with dignity and protected from modern slavery. Incarcerated people, immigration detainees, and persecuted minorities are no exception.

Relevant Freedom United campaigns

Freedom United allies and other organizations working on this issue