The Appeal Podcast: A Lack of Basic Rights for Incarcerated Workers

Many states pay incarcerated workers just 20, 30, or 40 cents per hour—and some don’t pay them at all. But incarcerated workers also have virtually no labor rights or civil rights when it comes to battling discrimination based on race, religion, gender, and other protected classes. Today we are joined by journalist Sessi Kuwabara Blanchard who explains why this disparity exists and what’s being done to fight it.

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Adam Johnson: Hi, welcome to The Appeal, a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts.

Most of our listeners are likely aware that the US hosts millions of incarcerated workers who toil away in obscurity for .20, .30, .40 cents an hour, but many don’t realize the extent to which basic labor rights do not apply to these workers including gender, religious and racial discrimination. Due to a series of Supreme court cases and legal barriers passed by Congress during the tough on crime wave of the 1980s and nineties incarcerated people have virtually no rights when it comes to their workplace. Today we are joined by journalist Sessi Kuwabara Blanchard to explain the lack of legal protections and parts of the difference between employee and inmate or what many suffering under these conditions consider their appropriate label to be: slave. 

[Begin Clip]

Sessi Kuwabara Blanchard: The whole notion of like rehabilitation, you know, and how this labor is being seen as like a rehabilitative program is itself like very insidious political project that needs unpacking in a way that we can’t just say, you know, we have to like divest from buying prison made products because there actually isn’t a huge economic incentive behind it.

[End Clip]

Adam: Sessi, thank you so much for joining us. 

Sessi Kuwabara Blanchard: Thank you so much for having me. 

Adam: So you wrote a wonderful article for In These Times detailing the degree to which labor law does not apply to people in prison. I want to start by detailing one specific case that you wrote about. Can you tell us about the story of Kendall Charles Alexander and why a judge ruled that he was not entitled to key labor protections from racial discrimination and retaliation and how this decision impacted his life and what the implications of this decision have been on the broader issue of labor protections of people who are incarcerated?

Sessi Kuwabara Blanchard: Yeah, absolutely. So I think maybe before I dive into the finer details of Alexander’s case, I think I’d wanna have a few kind of flags put up. So the first thing to know about Alexander’s case, which was filed in the District Court of New Jersey in 2015 is that the kernel of the case isn’t necessarily about the facts of the case. It never actually got that far in the courts. And so it’s primarily about these technical details and some of, you know, the very problematic case law as well as statutory law that is basically exempting people who have prison work placements from enjoying any of the kind of labor protections that anyone else in the United States enjoys. So when we’re talking about this, none of necessarily what I was digging in talking with Mr. Alexander about based off of his experience, nothing’s necessarily been settled as fact yet, but it’s kind of, you know, the staging ground for this broader question, right, about labor rights in the prison context.

Adam: Sure.

Sessi Kuwabara Blanchard: And then of course we’ll get into this more too, but since it is on the district court level, the opinion is not binding. It’s currently in the appeals court. It’s in the Third Circuit. So the questions will continue, but again, it’s impact still has yet to be seen, but we’ll get into that later. So basically Kendall Charles Alexander, he’s in his fifties, he’s a black man. He was incarcerated at the Fort Dix facility. It’s like about 30 minutes outside of Trenton, New Jersey. He was like a very skilled industrial worker. He has a lot of experience with engineering. He’s had previous placements with UNICOR or alternatively known as Prison Industries Corporation. And so at Fort Dix, in their factory, their textile factory, he was a mechanic on their sewing machines who is earning an incredible .46 cents an hour, which is not even the lowest that the wages will go. 

Adam: Right. 

Sessi Kuwabara Blanchard: And that was back in August 2013 and so given his work experience, he was supposed to be increasing in compensation. Important they don’t talk about it as wages, they talk about it, you know, as compensation. And so it’s supposed to be increasing every month. But his did not increase for seven months. Though it did eventually increase to .69 cents in the spring of 2014 and he alleged that the factory manager, Robert Ortiz, was discriminating against him and preferring white as well as Latinx workers over him and giving those promotions to those workers instead of him, a black worker. And so that’s one of the main factual claims that’s kind of threaded around through the argument that goes into equal protection claims that he makes. And then he makes some other claims about not getting the same benefits as other workers. So Alexander was alleging that the factory manager, Robert Ortiz, was promoting white and Latinx workers over himself. And he’s not necessarily saying all black workers weren’t being promoted, he’s specifically talking about himself, but he is claiming it’s due to his race, being black. So then he went through the administrative relief process and after filing those grievances, he then believed that he was being denied overtime opportunities by the manager, who was again, he was alleging that white and Latinx workers were getting those over him. And so those are the basis of the complaints. And it is still pretty unclear exactly what was happening. And I mean I think there easily could have been like a degree of interpersonal discrimination going on. But based off of a lot of the factual findings, for example, Alexander wasn’t receiving overtime before the grievance was filed. So, you know, it’s hard to say whether there were suddenly a stop in overtime opportunities for him following the grievance. So that’s kind of the basis of it all.

Adam: So he’s claiming racial discrimination, which is not outside of the realm of possibility in the United States and has a long history. And so his recourse is and we can get into this, is not what the recourse would be for a typical non incarcerated person where you either sue or you appeal to the civil rights Department of Justice or Labor Review Board. That sort of normal mechanisms to handle these things don’t really exist for prisoners. And I want to talk about the Prison Litigation Reform Act of 1995 which has actually come up a lot on this show. It seems like whenever we talk about abuse, every activist we talk to, every lawyer we talk to will tell us that the major barrier to any kind of meaningful pushback is this Act, which made it very, very difficult for people to sue in prison. You talked about this sort of administrative recourse they have. Can we talk about the problems with this administrative recourse versus what your average non incarcerated person has?

Sessi Kuwabara Blanchard: Yeah, so in the federal context, in the Bureau of Prisons, you have your administrative remedy claim. Then it goes to appeal in the regional area. If you don’t like what you hear back from the warden then you can appeal it again to the central office. And so Alexander actually pursued those claims all through the entire process. So he technically, and you know, the judge found this as well, that he did in fact exhaust the requirements of administrative remedies, which is a key part of the Prison Litigation Reform Act. One of the main barriers is that you have to exhaust the system and it’s so difficult, you know, just because it takes a long time, you have to have a drive to do it, filling out paperwork, all of that. 

Adam: It’s designed to make you give up. 

Sessi Kuwabara Blanchard: It’s designed, yeah. And so I actually have a quote here from Alexander that talks about specifically how he seen the administrative remedy process really push down people within the UNICOR workplace. So he wrote, “Cases like mine are always coming up however, people tend to get frustrated after the retaliatory action and give up quite often instead of pushing it through. Anytime that you began the administrative remedy process, you can expect some form of roadblock and a lot of people say forget it.” But then he also says, “I’m not one of those people.”

Adam: Right.

Sessi Kuwabara Blanchard: The difference here is before you can even get to court, you have to go through this extremely bureaucratic process and clearly a lot of times on the outside for employees, they don’t have that kind of bureaucratic process. They can just take it to court. But I think the key thing actually with this case isn’t the Prison Litigation Reform Act. I don’t think that’s the crux of the issue. And I think it actually is more to do with Bivens claims, which I think are lesser known, a little less sexy in the criminal justice reform space.

Adam: Let’s talk about that. 

Sessi Kuwabara Blanchard: Yeah. Yeah. So a Bivens claim comes from the Supreme Court ruling in the context of law enforcement officers who conducted what they found to be an illegal search and seizure. And so basically it offers you the route to receive damages based off of a constitutional violation committed by a federal agent, a federal employee. And prior to Alexander’s case, a Bivins claim had only been extended to two other contexts. One was in the prison context, in the federal prison context, specifically for cruel and unusual punishment cases. And one is Carlson vs. Green in 1980 and basically the BOP agent violated his Eighth Amendment rights by denying access to asthma medication and he died from that. And then the other context was in Congress member’s office. The Congress number was found to be discriminating against his female secretary when he fired her. And that was under the Fifth Amendment. So those are the two contexts that the prison and cruel and unusual punishment and then the unincarcerated labor context for discrimination. 

Adam: Right. 

Sessi Kuwabara Blanchard: But then in the middle of Alexander’s case, the Supreme Court heard Ziglar vs. Abbasi in 2017 which was involving a number of plaintiffs who were detained in Manhattan following 9/11 and they, you know, they were claiming a number of constitutional violations, but basically the judge said that courts should be hesitating before extending this claim to other contexts. And so in effect basically said that this recourse, and it’s one of the few recourses, you know, for federal prisoners, is pegged to these three specific circumstances. And those all happened, you know, like over 40 years ago. So that’s the center of where his rights and like paths to legal recourse are being obstructed. And in that finding the judge explicated something that’s happened in other courts but really brought it to the fore and really articulated it clearly that people who are in federal labor work placements don’t have access to the same constitutional protections in that specific work context as employees, unincarcerated employees. 

Adam: Right. 

Sessi Kuwabara Blanchard: So yeah, that’s kind of where it all lies.

Adam: Okay. So what you have is this kind of legal no man’s land. You close your article with the following quote: “Ultimately, the outcome of the case raises troubling questions about the status of incarcerated people. ‘If we are not employees, then what are we?’ Alexander wrote in the wake of the ruling. He answered his own question: ‘Slaves.’” This of course is not the first time incarcerated workers have been referenced as slaves. This is something that comes up a lot in the prison, obviously in the prison labor strikes of 2017 and 2018 which we’ve covered. This word — slaves — it’s used by some abolitionists to describe incarcerating labor. What is your thought on that term? Cause, you know, slave obviously evokes a very specific thing. Technically speaking, I personally don’t see how it’s any different than slavery. Obviously it’s not the same as what we know as being sort of racial hereditary slavery in the 18th century and 17th century United States. But there’s certainly more overlap than differences. So can we talk about what are your thoughts on the word slavery and if that somehow seems too harsh, what would be a word you would use in its stead?

Sessi Kuwabara Blanchard: Yeah, so I think, as you said, Alexander uses that word to describe himself. You know, for him that’s very self evident. And I think the feeling of enslavement is very real. And from so many of the different incarcerated people that I’ve been in conversation with for various articles have expressed that to me. There is a critical difference. And I think as again, you recognize between 19th century plantation slavery and more hereditary slavery versus that of today. And I mean there is, there’s so much work that draws the direct connection, the direct kind of legacy of plantation slavery to present day mass incarceration and some of the industries that exist within it. But we can’t lose sight of the fact that it is different in crucial ways. Like for example, you know, prison labor does not have the same economic force that plantation slavery did, where that was really like the heart of the economy, especially in the South.

Adam: Well, right, but from the perspective of the slave they wouldn’t really care right? I mean, but yeah, no, I see what I’m saying. 

Sessi Kuwabara Blanchard: Totally. But no, no, I think it’s important and I’m not saying that to undermine the claim that it feels like an enslavement and, you know, like the degree of their access to legal rights in any kind of way is no different from slavery. I think I’m more curious in how it’s just a specific kind of new innovative form of enslavement and confinement where there’s no coherent narratives and reason for why people are being put to work in the way they are. Whereas, you know, with plantation enslavement, it was clear, you know, to drive this economy. Whereas prison labor specifically within the UNICOR context, for the most part, the products generated by prison labor can’t be sold to the private market. And so generally it’s being pushed into the government, the government’s buying those products. So it has this eerie quality where like prison labor is buttressing and basically supplying the material objects of the federal government. The kind of classic example are like license plates, license plates are like, you know, notoriously products of prison labor.

Adam: And then we have the added kicker card instead of just having the unique American tradition of gratuitous racist cruelty for its own sake. It’s an ends in and of itself.

Sessi Kuwabara Blanchard: Right, right. And especially today, they clearly note this and a lot of like the policy documents around it and the statutes around this, they recognize that a lot of the reason for this labor program is to deter idleness. You know, what they call like inmate idleness.

Adam: God forbid, right? Yeah. 

Sessi Kuwabara Blanchard: Right. And so equating it with plantation slavery doesn’t do the same analytical justice that like the present issue requires. In this sense, we have to think about the whole notion of like rehabilitation, you know, and how this labor is being seen as like a rehabilitative program is itself this like very insidious political project that needs unpacking in a way that we can’t just say, you know, we have to like divest from buying prison made products because there actually isn’t a huge economic incentive behind it.

Adam: Yeah no I guess obviously I don’t think anyone would begrudge those who are incarcerated from using the word slave. And the reason why I think it’s, it’s a relevant question because this was tackled in documentaries like Thirteen that more or less say they are slaves, which I think sort of beyond the semantic issue, I think it speaks to the moral urgency of what we’re talking about right? Cause, you know, magazines on the left use the word “incarcerated workers” and they get criticism because it makes it look like, oh this is a child worker. It’s like well they’re slaves. Like, you know, they don’t have any agency and so it’s, I feel like I’m in need of some sort of in between word and I don’t quite know what it would be cause incarcerated workers does seem like a euphemism. I was just curious what you thought about it.

Sessi Kuwabara Blanchard: I was recently corresponding with someone else who’s incarcerated in the federal prison system. And I do think a lot of incarcerated folks consider “inmate” and how dehumanizing the word inmate is, how that’s used and like you know how people are denied just being referred to like with their name. They either you know, have their number, their inmate ID number or there’s this referred to as inmate X last name. And I mean obviously inmate has like a formal definition that isn’t as directly, like inmate isn’t defined as a slave. But I think inmate can function in some ways as a specific word to describe the specific type of prison slavery that’s going on.

Adam: Yeah, it’s this weird paradox because we avoid the word inmate because it’s dehumanizing, but then you run the risk of in a way sanitizing the system itself. Does that make sense? So like you don’t wanna use dehumanizing language, but at the same time incarcerated people it sort of, it can also have the dual purpose of sanitizing the suffering and this is something that we’ve talked about a bunch on the back end at The Appeal about why do you strike that balance? Because I do think semantics matter. I think again, because it speaks to the urgency of what we’re talking about. We’re talking about 3 million slaves or 3 million incarcerated workers or 3 million inmates. Those all have different connotations of what we should do to solve the problem. 

Sessi Kuwabara Blanchard: Right.

Adam: Anyway. So what is the current legal status of this? This article is a few months old now, but before we go, I want to talk about the current legal status. You actually updated us about Alexander’s status, but what does the sort of broader, is it true that the status quo is a more or less aligned? Is there any sense of change here or is it sort of just working its way through these various lawsuits?

Sessi Kuwabara Blanchard: To the extent of my knowledge, I think it has not progressed in the least, we’re currently stuck in these completely untenable lawsuits. You know, that even if someone wins something, it’s still applied on such an individual level. And I mean just generally also the status of the judiciary is so depressing right now. Like for example Alexander’s cases in the Third Circuit, and I mean like hypothetically if it somehow gets to the Supreme Court, I mean I think even if that happens, like it’s a depressing outcome either way. I guess this is almost like more of a question. I’m still very unclear and I’ve like looked into this myself to tangible outcomes of the prison strikes and I didn’t see any real material wins there. I don’t know. This is actually more of a question for you, Adam. Are you aware of any?

Adam: Yeah, the movement for with a lot of these things, some of them more, for lack of a better term, kind of bourgeois rights. Like for example, voting, which is hugely important, but it’s not as sort of positive economic right is where I think most of the headway was made from the prison strikes. A lot of the activism came out of the Florida movement to enfranchise people who are quote unquote “former felons.” Most of that was one of the primary demands of the strike and I think that provided the moral impetus for that and other movements. And of course just general unseen kind of reforms are also always kind of informed by that aggregate movement. But yeah, no, it’s always hard to tell, right? How do you gauge how these movements work? There’s fifteen think pieces about whether or not Occupy was successful or not, and nobody knows the answer to it.

Sessi Kuwabara Blanchard: Tying in the question of prison labor and enslavement, as well as how the Alexander ruling impacted him and just generally this, the question of prison labor, I think something really important to note is like .46 cents an hour doesn’t get you much, especially when you have court fees. Like when commissary pricing is just so enormously high, like prison phone calls, the rates are insane. So I think and Alexander really explicated this for me in our correspondences, he talked about the psychological toll that this labor has because like you don’t actually reap many benefits from this labor program. Like the pay is shit. They supposedly are giving you skills, you know, for when you get out to find employment. But like okay, they’re setting you up for either like service work because they, you know, they have all these call center programs. They’re setting you up for like extremely low wage jobs as well. You know, it kind of just perpetuates the cycle of poverty and all that. So he talks about the psychological toll and I think something that really bothered him and that came through in our correspondences was the question of like, if we aren’t employees then what are we? And I think you were getting at that, you know, when you were asking is slave the right word? And for Alexander I think slave is the right word. It’s that unsettling feeling that you’re being excluded from pretty much all existent labor law and basically being expelled, you know, from the legal political protections that anyone else who’s a citizen in this country enjoys. 

Adam: Yeah it’s like whenever you find these words, it seems like not choosing a word because it seems too extreme or sort of requires too much cognitive dissidence to operate, seems like not the right reason to not use it. It seems like an unwillingness to sort of face the savagery of the system itself. So it’s like an interesting criteria. Well thank you so much. I think that’s a good place to end it. This was very informative. I really liked this piece. I hope you do follow up work on it. I know that it’s basically the totality of people reporting on this stuff we can count it on one hand so we very much appreciate your work in this space. Thank you so much for coming on. 

Sessi Kuwabara Blanchard: Thank you so much for having me.

Adam: Thank you so much to our guest Sessi Kuwabara Blanchard. This has been The Appeal. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page, and as always, you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer as Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.