The state’s property right in the prisoner’s labor exists by virtue
of the 13th Amendment of the Constitution of the United States which
provides that slavery or involuntary servitude may be a punishment
for crime, after due process of law. This property right the state
may lease or retain for its own use, the manner being set forth in
state constitutions and acts of legislatures. To make this of material
value the prisoner’s labor must be productive. The distribution of the
product of the prisoner’s labor inevitably presents the problem of
competition. The confounding of the evil of penal servitude with the
methods of production and the methods of distribution which have grown
out of it has produced a confusion in the thought underlying prison
labor regulation by legislative enactment.
The usual penological analysis of prison labor into lease, contract,
piece-price, public account and state-use systems is impossible to use
in an economic analysis of the labor conditions involved. Economically
two systems of convict production and two systems of distribution of
convict-made goods exist; production is either by the state or under
individual enterprise: distribution is either limited to the preferred
state use market or through the general competitive market. In the
light of such classification the convict labor legislation of the
current year shows definite tendencies toward the state’s assumption of
its responsibility for its own use of the prisoner on state lands, in
state mines and as operatives in state factories; while in distribution
the competition of the open market, with its disastrous effect upon
prices, tends to give place to the use of labor and commodities by the
state itself in its manifold activities. Improvements like these in the
production and distribution of the products mitigate evils, but in no
vital way effect the economic injustice always inherent under a slave
system. The payment of wage to the convict as a right growing out of
his production of valuable commodities is the phase of this legislation
which tends to destroy the slavery condition. Such legislation has
made its appearance, together with the first suggestion of the right
of choice allowed to the convict in regard to his occupation. These
statutes still waver in an uncertain manner between the conception
of the wage as a privilege, common to England and Germany, and the
wage as a right as it exists in France. The development of the idea
of the right of wage, fused as it is with the movement towards
the governmental work and workshops, cannot fail to stand out in
significance when viewed from the standpoint of the labor movement.
The expression of these tendencies found in the legislation of 1911
comes to view in divers states and a confusion of statutes in which
every shade of development is present. While no state legislated to
give new powers of leasing or contracting for the labor of prisoners
and one only, Idaho, extended the field of its present leases,
twenty-one made some provision for the state’s assumption and operation
of industries: eight, California, Idaho, Indiana, Missouri, New Jersey,
North Dakota, Ohio, and Wyoming, provided in some manner for the
state’s consumption of the manufactured articles; and six, California,
Indiana, Missouri, New Jersey, Ohio, and Wyoming, established laws
for the regulation of prices and standardization of commodities. The
prisoner received compensation for labor in six states, Florida,
Kansas, Michigan, Nevada, Rhode Island, and Wyoming; his dependent
family was given assistance in five, Colorado, Maine, Massachusetts,
Missouri and New Jersey; while Nevada gave him the right to choose
between working on the roads or working indoors. The New York farm and
industrial colony for tramps and vagrants is of significance. Florida
met the peonage issue by a provision for working off fines during
imprisonment. The antagonism of organized labor to the distribution of
the products of the convict’s labor on the open market resulted in the
passage in Montana, Oregon and California of laws requiring branding
of convict made goods. The New Jersey and Wyoming laws, which are
especially complete, are summarized below.
In a word, the economic progress in prison labor shown in the
legislation of 1911 is toward more efficient production by the
elimination of the profits of the leasee, more economical distribution
by the substitution of a preferred market where the profits of the
middleman are eliminated in place of the unfair competition with the
products of free labor in the open markets, and finally the curtailment
of the slave system by the provisions for wages and choice of
occupation for the man in penal servitude.
_New Jersey._--The sale on the open market of the products of convict
labor of any state penal institution is prohibited after the expiration
of existing contracts. A preferred market is established consisting of
all manufacturable articles consumed by the state and sub-divisions
thereof. A prison labor commission is created to so regulate the penal
industries that the greatest amount consumable by this preferred market
will be produced. They are to publish a list of all possible articles
of manufacture and grant releases when articles cannot be supplied.
Penal officers are required to keep all physically capable convicts
employed, not to exceed nine hours a day except Sunday and holidays, on
productive work or in receiving industrial and scholastic instruction.
Yearly budgets are to be sent on October 1st to the commission by all
purchasing officials in the state. The penal institutions are to report
fully regarding all convict labor and its productive power together
with the cost of production. A uniform system of accounting is to be
established, together with a standardization of commodities to be
manufactured, on which is to be affixed a fair price. Agricultural
pursuits are to be given preference and the products sold as above,
except that the surplus products may be sold at advertised auction to
the general public once in six months unless they are of destructible
character and require more immediate sale. Counties and municipalities
are to conform to the state plan but may employ the prisoners for their
own use. Charitable institutions are allowed to manufacture for their
own use. Prisoners’ families dependent on charity are relieved by the
commissioner of charities at the rate of fifty cents for every day
the prisoner works, but this relief fund is limited to 5 per cent. of
the value of all goods produced. The services of charitable societies
are to be used for making investigations of families. The estimates
of added appropriations needed to carry this into effect are to be
included in annual estimates. The commission reports to the governor.
_Wyoming_.--The state board of charities and reform and the warden
constitute a state commission on prison labor, to regulate according
to its best judgment the employment of the state convicts so that they
may acquire a knowledge of a trade at which they can earn a livelihood
upon release. The labor of the convicts is to be upon products for
the state and sub-divisions of the state, and public officials cannot
purchase in the open market, unless upon release by the commission.
The price is fixed at the market price, and the type of articles may
be standardized. Prisoners, in the discretion of the commission, are
to receive a graded compensation, in no case more than 10 per cent. of
earnings of the institution. Surplus earnings may go to a prisoner’s
family, but may never be used in buying food or clothing beyond that of
common usage in his class; the balance, paid on release, is subject to
draft.