Private Prison Slave Labor?

There is a lot of attention being paid to private prisons and the forced labor performed by inmates at private prisons. Private prisons are profiting from the forced labor of their inmates and this seems to lead some objectors to denounce the practice as slavery. But is it appropriate to label this practice slavery? If it isn’t slavery, are private prisons justified in their behavior, and if so, how? There are good reasons to oppose private prisons, I think, but I don’t believe accusations of slavery are sound arguments. To that I now turn.

An essential criterion of slavery is its involuntary nature. But it is more than just that. It involves a type of ownership of another person as property. The person becomes an object without any rights of their own. In the case of prisoners they do have some rights, though fewer rights than people not found guilty of crimes. The act of incarceration itself we do not regard as a form of slavery though it entails a loss of rights and freedoms.

People imprisoned for committing crimes are also not automatically considered slaves since they are incarcerated for breaking the law. Let us further narrow our focus to people who we believe are justly imprisoned for committing crimes we agree deserve imprisonment as a form of punishment. People know that if they’re caught violating certain laws they will be imprisoned.

When poor European immigrants were travelling to the Colonies many of them couldn’t afford their voyage. In exchange for passage to the Colonies many agreed to terms of indentured servitude to those paying for their voyage. These people would work for their benefactor for a specified number of years without pay, but receive lodging and food to sustain them as they worked off their debt. Due to the contractual nature of this arrangement it would be inappropriate to regard this as slavery even though it was a form of indentured servitude.

We are left with the instances of free people who are taken against their will, who have committed no offense we recognize as a crime which would justify them being taken against their will, who are denied any basic rights over their own person and decision-making except for what their owner grants them and can withhold at his own discretion, and are treated as property which can be bought, sold, discarded, etc. at the discretion of the owner. If we accept this more historical definition of slavery, why do some label the forced labor done by inmates in private prisons as slavery?

I believe they focus on the idea of forced labor itself as being a form of slavery. But is this an appropriate stance to take? Do we not view community service as a just punishment for violating myriad different laws? That is a sentence imposed by the State in which people work without pay and it is a form of forced labor. Moreover, do we accept that inmates in State prisons can be forced into forms of community service such as highway cleanups? If we accept these methods of forced labor as a just punishment or as a form of restitution to victims or to the State for the costs incurred from their crimes, the State not engaging in a form of slavery. Sometimes, labor may be preferred by the guilty as a form of punishment, as a way of paying fines and fees or other restitution. Those in prison have time, not necessarily money, and working off debts can be a reasonable and welcome option to them. If we are willing to accept these arrangements as legitimate forms of punishment by the State, why is it that engaging in these same labors but at private prisons is a type of slavery?

Initially, one may argue that prisoners get a better deal in private, rather than public, prisons. One could argue, at least at the private prisons the prisoners are being paid something. Even if their wage is well below the minimum wage it is still more than they would get paid doing work at state prisons. Perhaps it is because the nature of the work is different and the party benefiting from the work is different that we nonetheless regard this arrangement with suspicion.

In a private prison labor is often used to make a product or provide a service that the private prison and its investors make a profit from. Rather than cleaning up highways or doing community service, prisoners are boxing tennis shoes for sale or something. This creates a legitimate complaint against private prisons: Benefits of the prisoners’ labor isn’t going to the victims of the crime, or to society at large, but to private investors.

This profiteering then creates a conflict of interest in the private prison to deny parole, if applicable, to keep the cheap labor incarcerated longer. It also creates a perverse incentive for lobbying public officials to change laws and even the sentences or verdicts of those convicted in order to supply the private prison with its cheap workforce. This invites opportunities for public corruption and miscarriages of justice.

Finally, this arrangement distorts the labor market. Inmates cannot quit and find other jobs until their sentences are served. With this captured labor force the private prison can pay wages below the minimum wage and below what the open labor market would command. This gives private prisons an unfair competitive advantage against other producers, and can dampen the magnitude of economic growth and development that may otherwise occur in an open marketplace.

For the reasons stated above, forced labor in private prisons is unjust and bad economic policy. The parties benefiting from that labor are private companies and investors and not the victims of the crimes, and the practice creates unfair market distortions.

Some may reply that the slavery label draws needed attention to the issue: “If we agree that there are racial disparities and injustices in adjudication and the criminal justice system doesn’t the existence of forced labor in general act as a way of subduing non-white citizens? And so even if in the abstract the idea of forced labor can be justified, in practice it is corrupt, and acts in effect as a type of slavery.”

I’m somewhat sympathetic to this argument from pragmatism but not fully persuaded. The matter remains that forced labor is viewed by many, even some inmates, as a legitimate means for any convicted person to pay fines and legal fees and provide some restitution to society. Would we view things differently if the State paid the prisoners and then those wages were garnished to go to victims or the State as a form of housing rent the inmates needed to pay while incarcerated? If we accept some forms of forced labor by inmates are justified when done in State prisons but not when done in private prisons, that seems to imply slavery can only exist when the private sector is the beneficiary. I think political prisoners in the Soviet gulags and the Jews in concentration camps would disagree that there cannot be state-run slavery. The label of slavery seems to depend in large part on whether we feel the imprisonment for certain types of offenses are justified, and that the forced labor is not cruel and unusual, but not merely on the fact that it is forced.

Finally, there are strategic political problems with labeling these instances of forced labor as slavery. Using the label of slavery creates a straw-man argument which proponents of private prisons can strike down. These proponents of private prisons can then construct their own non sequitur arguments in which they falsely claim that because they have refuted the slavery argument, private prisons are therefore justified (as if they do not need to provide their own argument in favor of their position but merely refute the slavery charge). This acts as a smokescreen and hides the real issues and problems with private prisons which ought to be discussed.

For all these reasons, I think the arguments against private prisons are strong, but to hinge the arguments against them on a label of slavery is mistaken.