#prison labor code

By the mid-point of 1935, it was clear to everyone that the Prison Labor Authority was a doomed experiment. “Regretfully and with extreme reluctance,” the Ulman Committee had concluded in November of 1934, the Prison Labor Code (PLC) had not and  could not solve the problem of prison labor, despite its idealism and good intentions. Ironically, in fact, the NRA and PLA had “inadvertently reversed” the trend away from commercialized prison labor by propping up the existing system. “The true function of the prison,” the committee declared, “is neither to make prot for private contractors nor to make prot for the State.” If the prison did not rehabilitate its citizens, then it had failed in its fundamental social purpose and must be either reformed or abolished. The PLA’s lack of support from Ulman and his colleagues meant a new approach was inevitable. A few months after their report’s release, the Supreme Court ruled unanimously in its famous Schetcher decision in May of 1935 that the entire National Industrial Recovery Act was unconstitutional. The NRA and all of its codes — including the PLC — were on their way out.

The Prison Labor Code might well be judged a failure: a quickly aborted subagency that rightly disappeared into historical obscurity. However, the PLC stimulated significant political and cultural ripples that contributed to prison labor’s evolving place in American political economy. For one thing, the shortcomings of the PLC prompted legislators into action, as they scurried to safeguard the intention of the Hawes-Cooper law. In 1935, responding to the furor surrounding the PLC, Congress passed the Ashurst-Sumners Act, which strengthened Hawes-Cooper’s restrictions by turning any interstate shipment of convict-made goods into a federal offense, while the Walsh-Healy Act of 1936 outlawed convict labor on federal contract work. Even then, some businesses and unions remained unsatisfied because Ashurst-Sumners was effective only if the receiving state had a law on the books prohibiting the importation of prison-made goods. The amended Sumners-Ashurst Act of 1940 fixed this loophole, making it a federal crime to knowingly transport convict-made goods in interstate commerce for private use, regardless of laws in the individual states.

If the PLC lit a fuse that finally ignited an explosion of congressional legislation, it also led to a vast expansion of public knowledge about the actual conditions of labor in prisons across the country. Perhaps the key conclusion of the Ulman Committee was the discovery that almost all of the existing data on American prisons was obsolete. The Department of Labor had sporadically documented prison labor since the mid-1880s, but such information was unhelpful in understanding the situation in the 1930s. Indeed, if society had broadly agreed that the state-use system and its program of rehabilitative labor should be guiding norms, then much of the existing information, based as it was on scattered studies of a predominately convict-lease system, offered limited guidance for either professional criminologists or the general public.

Little wonder that, as the PLC disappeared, many of its officials and supporters (including Louis Robinson and Joseph Ulman) filtered into the Prison Industries Reorganization Committee (PIRC) and began the most systematic national survey of prison labor ever attempted. From California, PIRC investigators criticized the woeful overcrowding at San Quentin prison (the nation’s largest) and warned that, with out a strongly diversified state-use system, the culture of the prison “will be reduced to the most bitter, unregenerate and anti-social of the prisoners.” From Kansas, they warned that the state prison seemed like a tinderbox, having witnessed “several spectacular prison breaks, mine riots, and other disturbances” in recent years; they urged an end to overcrowding, the closure of a massive and dangerous prison coal mine, and stronger reliance on prison farms. And, from Georgia, investigators noted the inmate population’s racial disparity (of the state’s 4,437 inmates in 1936, 3,349 were black), the use of humiliating chain gangs on public works, and the sometimes-horrific holding pens (which, investigators urged, should be destroyed “in the interests of decency and humanity”). Under the scrutiny of federal investigators, stirrings of reform were evident. The very fact that a Georgia governor opened the state’s prison system to federal investigators and subsequently pledged to modernize it illustrates the 1930s-era move away from the idea of prison labor as a valuable commodity and toward a model focused on rehabilitation. While fair-minded and fact-based, the reports were by no means value neutral. Indeed, the thirteen detailed studies conducted by the PIRC created a pool of knowledge-as-advocacy. The entire purpose of accumulating facts and expert recommendations was to eliminate inhumane conditions, generate greater unity and efficiency, and push states toward robust state-use prison economies.

Given this legacy, the Prison Labor Code echoes oddly but urgently in the context of the early twenty-first century. Just as many political values of the New Deal era came under assault with the emergence of the New Right in the 1970s, so, too, did many ideas about crime, punishment, and the economy of prison labor. In part, this shift reected the tumultuous 1960s, an era of not only rising crime rates but also deep social unrest and numerous urban uprisings. As historians such as Michael Flamm have demonstrated, conservative politicians adroitly associated lawlessness with liberalism (and, by extension, with black civil rights), promising a return to “law and order” with a harsher and more punitive approach to (black) crime. Meanwhile, as historian Elizabeth Hinton has recently argued, much of the “war on crime” was ironically rooted in liberal policies of the Great Society. Driven by forces on both the Left and the Right, the American prison population exploded at mind-boggling rates. In 1970, fewer than 500,000 people were imprisoned; by 2014, that number had swollen to 2.5 million (even as crime rates declined), making America the largest penal state in the history of the world.

As attitudes toward crime shifted, so, too, did New Deal – era norms regarding the appropriateness of prison labor. Beginning in 1979, the Justice System Improvement Act — a piece of legislation drafted by a conservative think-tank — once again allowed for-profit corporations access to prison labor. This legal retreat from the premises of New Deal prison reform perfectly coincided with the expansion of “get tough” anti-crime laws and an enormously expanding prison population. Indeed, during the 1990s, thirty states legalized contract prison labor to private firms. In California, Proposition 139 even provided tax credits for firms who built plants on prisons. A handful of enormous, prestigious companies, such as AT&T and Microsoft, hired inmates in the early 1990s before backing away after receiving critical press coverage. Journalist Christian Parenti, exploring the issue in 1996, interviewed one garment producer who had moved his operation from a maquiladora in Mexico into California’s San Quentin prison because of the lower operating costs. As Parenti warned at the time, prisons “are rapidly becoming maquiladoras in our midst.” Bill Gates may not have wanted Microsoft customers to associate his fortune with convict labor, but many other types of companies — like textile producers — are much less vulnerable to bad press and much more sensitive to tight margins. As of 2012, over 600,000 — and possibly close to a million — prisoners were fully employed, often earning between $0.13 and $0.32 an hour while working for private contractors.”

Given these two serious flaws, charges of the code’s failure were certain and emerged almost immediately. In Louisiana, tomato canners complained that the Angola prison farm artificially depressed the market; where free-market canned tomatoes sold at $0.60 per pound, prison tomatoes sold at only $0.40. Worse, the quality of prison-made cans was so “sorry” that the state Charity Hospital would not even buy the prison-packed tomatoes; the produce was dumped on the open market, where it undercut the fruits of free labor. In Virginia, the operator of a rock company that ground gravel for state roads saw his orders drop by almost 80 percent after the state required that all contracts go to the lowest bidder; his company was undercut by the state penitentiary. “We do not believe you fully understand the situation,” the president of the Belmont Trap Rock Company wrote to the PLA: competing with prison labor meant the end of his business and unemployment for his twenty-two workers. Likewise, in Illinois, strong evidence suggested that the state prison had put the Columbia Quarry Company out of business by selling lime dust at $0.60 per pound, when the minimum cost to even produce that amount was $0.80. Throughout the state, a local field agent found, small quarries “complained to me bitterly” about competition from prison labor.

Problems emerged not only within states, but between them, as well. A Chicago saddle maker realized that sales of his whips were being undercut by the Bardall Company from West Virginia, which utilized convict labor. When the Chicagoan (named Schmidt) traveled to West Virginia to induce his competitor to raise prices to reasonable levels, Bardall did not repent his strategy but instead suggested collusion in producing illegal convict-produced goods — a prospect that would mean the end of Schmidt’s shop and unemployment for his workers. In this case, the PLA was able to sanction the Bardall Company, but it also discovered frustrating loopholes that surely struck some businesses as Kafkaesque. The Trojan Wire Specialty Company, for instance, had operated for years in Troy, New York, but suddenly discovered that it could not match the prices of the Gatch Brush and Wire Goods Company, which operated out of the Baltimore city jail. This seemed to be a clear violation of the terms of the PLC, to which both New York and Maryland were signatories. But, as Linton Collins of the PLA responded, the code only policed labor at state institutions. The seventeen workers at the Trojan Wire Company who faced unemployment apparently had no recourse when confronted by convict labor at a municipal house of correction.

More was at stake than just individual businesses, important though they might have been to the individuals involved. The efforts of reformers to develop a more nationalized approach to prison labor also touched on fundamental philosophical approaches to political economy. And, if the NRA seemed hopeful to progressives and liberals, it struck others as a dangerous, even tyrannical, example of the centralization of power and enlargement of the executive branch. Henry Hanson, a representative of the marking devices industry, acidly made this point to PLA officials. His industry, Hanson observed, had pioneered the production of license plates, “only to see the sentimentalities of pseudo-criminologists combine with the distorted economics of self-serving individuals” who shifted license-plate production to prisons, thus forcing states to duplicate an industry that already existed. This inefficiency hurt both industry and taxpayers, Hanson claimed, and also led to substandard quality. Over 200,000 Illinois motorists were forced to return their prison-produced 1935 license plates after the plates rusted out in a matter of months. The disaster of Illinois’s license plate production was more than an isolated instance of prematurely rusty metal. To Hanson, it also portrayed “one more example of the inevitable economic waste inherent in the attempt of government to exercise the proper function of private industry.” The struggle over the fate of the PLA was therefore also a conflict over the proper function of government and the relationship between the state and the economy.

No dispute illustrated this political conict in starker terms than the virulent opposition the PLA attracted from the cotton garment industry. Federal officials responsible for the PLA felt that the hostility of garment makers to prison labor was vastly overblown and hypocritical; in 1931, only 604 prisoners were counted at work on 15,000 spindles, as compared to the nearly 29 million spindles employing about 330,000 free workers. Still, the textile industry had a potent political voice, and it carried deep historical reverberations. The emergence of the textile industry in the 1810s marked the dawn of America’s industrial age; for nearly one hundred years, the spread of mills from bucolic New England to the resplendent New South propelled the nation’s economic growth and spurred a wave of factory building that quickly outstripped most of Europe. Textile factories had served as the cradle of the American working class, revolutionizing both the experience of labor and the social identity of laborers.

But by the early 1930s, America’s textile industry faced a pivotal moment. The cotton garment trade had been mired in its own depression for nearly a decade before the stock market crash of 1929. Tariffs prevented American manufacturers from selling surplus goods overseas. Shifts in fashion and taste increasingly favored newer products like rayon and nylon. Decentralization led to cutthroat competition and ruinous overproduction, which in turn forced wages ever downward. Technological and market changes were not the only challenges facing textile companies. In the spring of 1934, just as the PLA was being signed into law, over 300,000 textile workers across the country staged a massive general strike — the largest labor conflict ever to rock the industry.

Faced with these challenges, the garment industry responded furiously to the PLA. The opposition from the Cotton Garment Code Authority (or CGCA, the trade group organized under the NRA to regulate textile production) and private manufacturers flamed up just weeks after Roosevelt authorized the PLA. Ideological and material interests quickly coalesced on both sides of the matter. In May, the CGCA filed a formal complaint with Hugh Johnson, Roosevelt’s choice to head the NRA, protesting the fact that prison-made goods would be entitled to their own NRA “blue eagle” badge. The “blue eagle” logo signified compliance with the NRA and was meant to unify business, labor, and the public around the early New Deal; for many, it symbolized the entirety of the first New Deal program. The blue eagle’s “We Do Our Part” motto inspired a patriotic sense of togetherness and collective commitment in the face of the Depression, and signaled to the public that whatever item bore a blue eagle had pledged itself to the wage and price guarantees of the New Deal. 

Granting prison-made goods a blue eagle, in fact, represented a total reversal of nineteenth-century reformers’ efforts to have a “prison made” label stamped like a scarlet letter on all prison-made products. The opposition of the CGCA, then, was both practical and ideological: practical because, without the badge, prison-made goods would be effectively barred from a code-governed marketplace; and ideological because removing the blue eagle would symbolically strip prison labor from the sociopolitical legitimacy that a code would otherwise confer.

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Assessing this situation, Sanford Bates noted, “We have infinitely more opposition from the manufacturers, who are interested in profits, than from the unions, who are interested in humanity.” But the controversy over the blue eagle threatened a revolt from labor, too. When the PLA met in April of 1934, both Thomas Rickerts of the United Garment Workers and Sidney Hillman of the Amalgamated Clothing Workers agreed that prisons could not possibly meet the standards of the cotton garment code, and therefore prison products could never be given a blue eagle that reflected this code. When the PLA started affixing blue eagles under the Prison Labor Compact code in 1935, the United Garment Workers local in St. Louis erupted in protest. Petitions to remove the blue eagle from prison-made goods flooded in, accompanied by cartoons featuring unemployed workers staring wistfully into a prison; the caption read, “They Have Our Jobs!” Seeking organized labor’s help in resolving this controversy, Linton Collins reached out to Joseph Briegel of the Chicago Federation of Labor. Briegel responded that, in learning of the conflict, he was more committed than ever to end prison competition with free labor. However, recognizing that taxpayers seem to want something for supporting the prisons, he puckishly suggested a solution: “That every article manufactured in prison that would in any manner compete with Free Labor . . . be piled up in a safe spot in the prison yards and burned as a funeral pyre. (The date set for these fires to be on Labor Day, as a reminder to the world that Prison Competition with Free Labor is a sacrilege to humanity).”  

The move away from convict labor and toward a state-use system seems to confirm the broader liberal narrative of American progress; it comforts us with the notion that humanitarian impulses won out in the end. 

The reality is less sanguine. For one thing, prisoners’ working conditions at places like San Quentin’s jute mill, Folsom’s rock quarry, or Texas’s enormous prison cotton plantations remained brutal and dangerous, and reflected harsh hierarchies of racism and violent masculinity. Quite apart from the fact that prisons in the 1930s could hardly be described as cradles of human kindness, the “progress narrative” also obscures the basic centrality of coerced labor to even the most reformist vision of prison discipline. 

In fact, the ascension of the state-use system (and, with it, the Prison Labor Compact) did not mark the end of the idea of prison labor but its entrenchment at the heart of progressive theories of rehabilitation. Louis Robinson’s own attitude toward prison labor was emblematic. All informed thinkers of his time, Robinson thought, agreed that prisoners should not be exploited or abused, nor should their labor threaten the livelihood of free workers. But without productive work, Robinson concluded, the reform of criminals was impossible. Prison work, as documents of the time often framed it, “is primarily therapeutic” and rehabilitative. In the context of the penitentiary, reformers believed that prison labor’s fundamental character was psychological and social, not economic.

From this perspective, the main crisis in the prison system was not labor exploitation but “unemployment.” When the Department of Labor surveyed prison labor in 1932, it estimated that, despite a growth in the inmate population, the proportion of prisoners who worked had shrunk from 75 percent when the department first investigated in 1885 to a mere 52 percent. James Bennett, a leading advocate of prison labor within the federal Bureau of Prisons, averred that the real number was closer to 25 percent in 1934. A 1933 memorandum prepared for the US attorney general argued that prisoners’ unemployment was a “serious problem,” leading to idleness, depression, and discontent. Even the reformist American Prison Association agreed, arguing in 1931 that “without work, there is bound to be a deterioration and breakdown of prison discipline.” As James Bennett emphatically put it in a letter to the Commerce Department, the entire New Deal approach was “built around one fundamental axiom, viz: That prisoners must work.”

New Dealers therefore pursued two goals: to compel prisoners to work, and to have this labor performed within a state-use system. But the reality was that New Dealers in Washington, even with the implementation of Hawes-Cooper looming in late 1933, could not compel the adoption of a state-use approach. Punishment had always been primarily the business of states and municipalities, and prison conditions varied widely across regions and even within states. Howard Gill, a superintendent of the State Prison Colony in Massachusetts, assessed the law in 1931 (three years before it was implemented) and predicted that Hawes-Cooper would merely “shift the control [of convict leasing] from a small number of large contractors operating in a national market to a large number of small contractors operating in a state market.” In other words, Hawes-Cooper simply balkanized states into those that used a state-use model and those that permitted private convict leasing; it did not actually dismantle convict leasing. Indeed, Hawes-Cooper reinforced a federalist model, in which each state pursued its own prison labor policy, at the very moment that New Dealers were hoping to rationalize prison labor according to national standards.

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Not only was federal authority limited in pushing states into a state-use system, but it could not even assure its more basic and central goal: keeping prisoners at work. Most states, these officials recognized, were flatly unprepared for the implementation of Hawes-Cooper. Many federal prison administrators worried that the law would not only affect the interstate trade of prison-made goods but also undermine all prison industries — and with it, they felt, any chance of prison discipline or rehabilitation. Some states, particularly in the underdeveloped South, depended on the interstate sale of prison-made goods to finance their precarious, Depression-ravaged budgets and had no viable substitute on the horizon. 

These problems emerged immediately after the law’s passage, when Alabama — one of the most notorious utilizers of the convict-lease system — filed suit in federal court against nineteen other states that had cited Hawes-Cooper in banning the sale of work shirts by a contractor who had used Alabama prison labor. As Alabama’s attorney argued, the state had invested over $300,000 to build prison mills and relied on its share of sales from these work shirts to maintain its inmates at labor. More significantly, Alabama invoked the notion of federal authority over interstate commerce in an ironic twist that ultimately eroded federal authority over prison labor. It argued that other states could not challenge Alabama’s prison-made exports because they could not regulate interstate commerce: that was a federal responsibility. 

There was a bemusing, if not cynical, irony in hearing Alabama, a state with a long history of antipathy to federal intervention in local affairs, argue against states’ rights on the matter of prison-made goods. Meanwhile, penologists of the New Deal looked warily on the outcome of the Alabama case and the ultimate impact of Hawes-Cooper. As Alabama v. Arizona worked its way to the Supreme Court in late 1933 (just months after Roosevelt took office), another ironic twist emerged: lawyers working for the US attorney general urged the Justice Department to support Alabama, fearing that, if it lost, prison labor would be tarred as fundamentally inimical to society. (The Supreme Court ultimately denied Alabama’s suit in 1934.) That liberal criminal justice reformers in Washington would go so far as to defend Alabama’s convict-lease arrangement — despite their historical, philosophical, and moral opposition to convict leasing — illustrates the depth of their concern about the public’s rejection of any sort of prison-labor programs.”

In particular, they turned to the National Recovery Administration (NRA), centerpiece of the so-called first New Deal. The overall strategy of the NRA was to end the depression by eliminating overproduction, controlling prices, and raising wages. It thought to accomplish this by allowing sectors of industry to openly cooperate without fear of antitrust laws. Across the country, businesses developed “codes” — essentially, voluntary compacts, under the jurisdiction of federal officials — to govern their corner of the economy in a more “planned” and rational manner. Why, prison officials wondered, could the NRA not benet the prison economy in much the same way as it promised to help the free economy?

The Prison Labor Code (PLC) that emerged from the NRA in 1934 seemed to embody many long-sought goals of progressive penology. It contained a series of measures designed to safeguard prisoners from abusive situations — prohibiting “dangerous” working conditions, for instance, and mandating a forty-hour-maximum work week. It clarified that its conditions applied uniformly to all forms of prison labor and all prison products (although, critically, it exempted agricultural prison labor, which meant that inmates at places like Louisiana’s infamous Parchman Farm remained without federal protection). Most significantly, the code expressly stipulated that prison goods could never be sold for “lower than the fair current price,” thereby safe-guarding free industry and free labor from the undercutting effects of convict-made products. The centrality of this provision can be discerned in the final name of the code: “The Compact of Fair Competition in Prison Industries.”

The possibilities of the NRA and the PLC were exhilarating to prison activists. In one fell swoop, the code promised to eliminate abusive labor systems, while preserving the ideal that prisoners should work. It claimed to mollify both industry and organized labor by controlling prices. And, perhaps most importantly, it seemed to signify a movement toward the national standardization of prison labor without sacrificing the states’ own role or authority in governing its prison systems. As a major investigation into the PLA would later note, reformers at the time felt that the compact “was going to achieve at one blow what fifty years of public agitation and striving had failed to secure.” 

On April 19, 1934, Franklin D. Roosevelt signed the code, and, in the Prison Labor Authority, American prison labor found its first semi-national governing structure. That the code entailed such fatal compromises, engendered such passionate resistance, and collapsed so quickly and completely illustrates the powerful undertow of Louis Robinson’s question: should prisoners work?”